Board Observer. (a) The Company shall ensure that, at any time from the Acquisition Closing Date, the holders of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right to appoint one non-voting observer (“Board Observer”) to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive all materials distributed to all members of the board of directors (and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information). (b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.
Appears in 1 contract
Sources: Indenture (Greenfire Resources Ltd.)
Board Observer. (a) The Company shall ensure that, at any time from the Acquisition Closing Date, the holders Holders of more than 50% of the a majority in aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right to appoint designate one representative (the “Observer”) to attend all meetings of the Board of Directors of the Company, the Board of Directors of each of the Company’s material subsidiaries and each committee of such Board of Directors of the Company or material subsidiary (collectively, the “Relevant Meetings”) as a non-voting observer (“Board Observer”) by notifying the Company in writing or by directing the Trustee in writing to notify the Company in writing of such designation; provided that such Observer shall have the same duties of confidentiality and non-disclosure as the other members of the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Directors. The Observer shall be entitled to (i) prior written notice of all Relevant Meetings in the same manner and with the same amount of advance notice, which shall be at least five (5) Business Days’ advance notice where practicable, that is provided to all other members of the Board of Directors of the Company, its material subsidiaries and any committees of such Board of Directors in connection with such Relevant Meetings, (ii) receive all materials distributed provided to all members (contemporaneously with other members’ receipt of such materials) of the board Board of directors (Directors of the Company, its material subsidiaries and all members any committees of each committee) such Board of Directors in their capacity as suchconnection with such Relevant Meetings, (iii) such Board Observer will not have attend (whether in person, by telephone, or otherwise) all Relevant Meetings as a non-voting power but will be entitled to attend all meetings observer, and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer receive reimbursement for all reasonable travel fees and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer incurred in connection with its role as attending such Relevant Meetings; provided, however, that the Company reserves the right to exclude such Observer from access to any material or meeting or portion thereof (only if the Observer is notified of such informationwithholding) if the Board votes in good faith after advice of counsel, that such exclusion is necessary (taking into account any confidentiality agreements that such Observer has executed or is willing to execute): (a) to preserve the “Board Information”attorney-client privilege; or (b) and not use any Board Information except solely within to avoid the scope impairment of the Board Company’s ability to enforce its rights under this Agreement in any bona fide dispute with the Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the . The Company will hold regular meetings provide reasonable advance notice if it intends to exclude the Observer from attending any portion of its Board any meeting or from receiving any particular materials, describing the basis for such exclusion, and reasonable prior notice of shall cooperate with the date of each such meeting Observer in good faith to limit to the maximum extent reasonably possible the degree to which the Observer will be provided by the Board Observer and (vii) excluded from such Board portions of such meetings or receiving such materials. Such Observer shall be entitled to certain other rights reasonably acceptable removable only by (A) the Required Noteholders (i) by providing written notice to the Company or (including the right to not partake in any of the above activities or receive any of the above information).
(bii) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.by directing the
Appears in 1 contract
Board Observer. (a) The Company Purchaser shall ensure that, at any time from the Acquisition Closing Date, the holders of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right be entitled to appoint one non-voting nonvoting observer (the “Board Observer”) to attend each meeting of the Board Company’s board of Directors directors (the “Board”) or committee of the Board and to receive copies of all communications received by the Board members, including, without limitation, notices regarding the call of meetings, provided, however, that the Company reserves the right to exclude the Observer from access to any portion of materials or any portion of a meeting to the extent such portion of the materials or meeting contains information (i) the disclosure of which would, in the opinion of the Company or equivalent governing body of its counsel, adversely affect the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of attorney-client privilege between the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonablycounsel, (ii) such the Board determines that the Observer shall be entitled has a conflict of interest that is specific to receive all materials distributed to all members of the board of directors (and all members of each committee) in their capacity as such, Observer or (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as otherwise determines that Observers receipt of such (materials or attendance at such information, meeting would materially and adversely affect the “Board Information”) Company. Upon reasonable notice and not use any Board Information except solely within the scope at a scheduled meeting of the Board Observer’s role or such other time, if any, as a Board Observer and not disclose the Board Information other than to such of may determine in its affiliates with a need to know sole discretion, Observer may address the Board Information, in each case subject with respect to exceptions to be agreed by the Purchaser’s concerns regarding significant business issues facing the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice . Prior to attendance at any meeting of the date Company’s Board or the receipt of each such meeting will be provided copies of any communications received by the Board Observer and (vii) such Board members, the Observer shall be entitled to certain other rights enter into a standard Regulation FD Confidentiality Agreement reasonably acceptable to the Company. The Purchaser agrees and Observer or any other representative of the Purchaser shall agree, to keep confidential and not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company), including trading, any confidential information obtained from the Company (including pursuant to the right terms of this Section 4.3 other than to not partake the Purchaser’s attorneys, accountants, consultants, and other professionals, to the extent necessary to obtain their services in connection with monitoring the Purchaser’s investment in the Company; provided, however, that prior to the disclosure of any confidential information obtained from the Company pursuant to the terms of this Section 4.3 to any of the above activities or receive Purchaser’s representatives, any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders such representative shall have the right to appoint one Board Observer entered into a standard Regulation FD Confidentiality Agreement reasonably acceptable to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed aboveCompany.
Appears in 1 contract
Board Observer. (a) The Company L▇▇▇▇▇▇, Inc. shall ensure that, hold regular meetings of its board of directors (or equivalent governing body) at any time from the Acquisition Closing Date, the holders of more than 50least once per fiscal quarter. So long as Alcentra holds at least 75% of the aggregate original principal amount of the outstanding Notes (includingLoan advanced on the Closing Date, without limitation, Additional Notes) shall have the right to appoint one non-voting observer (“Board Observer”) to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer Alcentra shall be entitled to designate one (1) observer to the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and each of its Subsidiaries, and any committee thereof, which observer shall receive (at the same time and in the same manner provided to the directors) notice of and copies of all materials distributed provided to directors in connection with, and shall be entitled to attend and participate in, at the Loan Parties’ expense, all members meetings of the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer Subsidiaries, and any committee thereof. Such observer shall also receive (at the same time and in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer directors) notice of and copies of all materials provided to the directors in connection with any actions to be taken by written consent of the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and each of its role as Subsidiaries, and any committee thereof; provided that such observer shall execute a customary confidentiality agreement on terms reasonably satisfactory to the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. relating to such informationobserver’s attendance at such board meetings; provided further that notwithstanding anything herein to the contrary, the “Board Information”board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and not use each of its Subsidiaries, and any Board Information except solely within committee thereof may exclude such observer from any portion of such meeting, as determined in good faith, in order to preserve attorney-client privilege or to avoid a conflict of interest where the scope discussions in such meeting directly relate to matters pertaining to the Loans as to which the interests of the Board Observer’s role as a Board Observer Loan Parties and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions Alcentra are reasonably expected to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and adverse. The Loan Parties shall reimburse Alcentra for all reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company expenses (including the right to not partake in any of the above activities or receive any of the above information).
(ball travel, meal and lodging expenses) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued incurred by its observer in connection with the offering as attending any meetings described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.
Appears in 1 contract
Board Observer. (a) The Company Borrower shall ensure that, at any time from the Acquisition Closing Date, the holders of more than 50% permit a single designee of the aggregate principal amount of Administrative Agent to be a board observer to the outstanding Notes Borrower (including, without limitation, Additional Notes) shall have the right to appoint one non-voting observer (“Board Observer”) to ). In such capacity, the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive attend all regularly scheduled meetings of the Board, including but not limited to regularly scheduled meetings occurring each fiscal quarter, and may attend all other meetings of the Board of the Borrower by invitation. The Borrower shall ensure that the Board Observer is invited to each such meeting at the same time as each other member of the Board and that such Board Observer receives all board materials distributed at the same time as each other member of the Board (which board materials Administrative Agent shall share promptly with each Lender); provided that any such material may be redacted by ▇▇▇▇▇▇▇▇, and Borrower may exclude the Board Observer from meetings of the Board, (i) 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, (ii) if such Board Observer is a competitor of the Company, (iii) in order to protect individually identifiable health information (as defined under HIPAA), or (iv) to the extent such materials or meetings relate to the executive committee or compensation audit committee; provided, further, that such redactions and the exclusion of the Board Observer are restricted so as to be only as extensive as is reasonably necessary in order to exclude or prevent access to the Board Observer to information described herein. If appointed, the Board Observer may resign or withdraw at any time, or, at the request of the Borrower or the Administrative Agent, be replaced by a designee of the Administrative Agent that is reasonably acceptable to the Borrower.
(b) Without otherwise limiting the Administrative Agent’s and ▇▇▇▇▇▇▇’ right to expense reimbursement hereunder, the Borrower shall reimburse the Administrative Agent for all members reasonable and documented out-of-pocket expenses incurred by or on behalf of the Administrative Agent or the Board Observer in attending any in-person meetings of the board of directors (and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role thereof or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued otherwise in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board exercise of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed abovetheir rights hereunder.
Appears in 1 contract
Board Observer. (a) The Company For so long as it holds at least 966,933 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the like), JAFCO shall ensure that, at be entitled to designate one individual to attend and observe any time from the Acquisition Closing Date, the holders regular or special meeting of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right to appoint one non-voting observer (“Board Observer”) to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive all materials information distributed to all members the Board of Directors at the time of the board original distribution of directors (such information; provided, however, that such representative shall agree to hold in confidence and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings trust and to receive act in a fiduciary manner with respect to all information so provided; and notices provided to members of the boardfurther, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) that the Company will reimburse reserves the right to withhold any information and to exclude such Board Observer representative from any meeting or portion thereof for all reasonable travel and other reasonable and documented out of-pocket expenses related legitimate corporate purposes, including, but not limited to, if access to such Board Observer’s role information or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) attendance at such Board Observer shall maintain the confidential nature of the information regarding meeting could affect any evidentiary privilege between the Company and its subsidiaries made available advisors or provided to the Board Observer would result in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope disclosure of the Board Observer’s role as a Board Observer and not disclose the Board Information other than trade secrets to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information)representative.
(b) Upon redemption For so long as it holds at least 2,056,090 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the like), Paladin shall be entitled to designate one individual to attend and observe any regular or repayment in full special meeting of the Notes or satisfaction, discharge or other termination Board of this Indenture Directors and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right be entitled to appoint one Board Observer receive all information distributed to the Board of Directors at the time of the original distribution of such information; 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 equivalent governing body of the Company portion thereof for legitimate corporate purposes, including, but not limited to, if access to such information or attendance at such meeting could affect any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of evidentiary privilege between the Company and its subsidiariesadvisors or would result in disclosure of trade secrets to such representative.
(c) For so long as it holds at least 488,396 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the like), Montagu Newhall shall be entitled to designate one individual to attend and observe any regular or special meeting of the Board of Directors and shall be entitled to receive all committees thereof or acting in lieu information distributed to the Board of Directors at the time of the original distribution of such Boardinformation; provided, subject 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 conditions Company reserves the right to withhold any information and requirements listed aboveto exclude such representative from any meeting or portion thereof for legitimate corporate purposes, including, but not limited to, if access to such information or attendance at such meeting could affect any evidentiary privilege between the Company and its advisors or would result in disclosure of trade secrets to such representative.
Appears in 1 contract
Sources: Stockholders Agreement (GlassHouse Technologies Inc)
Board Observer. (a) The Company shall ensure thatDuring the Term, at any time from the Acquisition Closing Date, the holders of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) Investor shall have the right to appoint designate one (1) individual to be present in a non-voting observer voting, observational capacity (for clarity, with no right to participate) at all meetings of the Opthea Board of Directors or any committee thereof, including any telephonic meetings but excluding executive sessions of any such meetings (such individual, the “Investor Board Observer”) ). Any materials that are sent by Opthea to the members of the Opthea Board of Directors in their capacity as such shall be sent to the Investor Board Observer simultaneously by means reasonably designed to ensure timely receipt by the Investor Board Observer (provided that Opthea need not provide to the “Board”) Investor Board Observer any information that, if disclosed to the Investor Board Observer in his or her capacity as such, would adversely affect the maintenance by Opthea of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time applicable attorney-client privilege, any information that relates to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity the negotiation of any amendment to serve as the Board Observer, as determined by the Company, acting reasonablyor restatement of this Agreement, (ii) such the strategy with respect to this Agreement as it specifically relates to Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related to the Product or the activities undertaken by Opthea, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing the Product) or (iii) the relationship between Opthea and Investor, or any information related to internal business matters of Opthea that does not relate to the activities to be undertaken by Opthea pursuant to this Agreement and would not reasonably be expected to have a Material Adverse Event), and Opthea will give the Investor Board Observer shall be entitled notice of such meetings, by the same means as such notices are delivered to receive all materials distributed to all the members of the board Opthea Board of directors (Directors and all members at the same time as notice is provided or delivered to the Opthea Board of each committee) in their capacity as such, (iii) such Directors. The Investor Board Observer will not have voting power but will be entitled to attend all meetings execute a confidentiality agreement in form and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights substance reasonably acceptable to Investor (and, for the Company (including avoidance of doubt, Investor will remain responsible to Opthea for any noncompliance by the right to not partake in any of the above activities or receive any of the above informationInvestor Board Observer with such confidentiality obligations).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.
Appears in 1 contract
Board Observer. Following the execution of investment agreements in accordance with Section 6.1(a) (a) The Company shall ensure thatEquity Investment), at any time from the Acquisition Closing Date, the holders of more than 50and for so long as Astellas or its Affiliates continues to own 100% of PTI’s aggregate issued and outstanding capital stock or instruments convertible or exercisable into capital stock (all on an as-converted basis) issued to Astellas in accordance with Section 6.1(a) (Equity Investment), PTI will permit a representative of Astellas (the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right to appoint one non-voting observer (“Board Observer”) to the attend all meetings of its Board of Directors (the “Board”) in a nonvoting observer capacity and, in this respect, will give such representative copies of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiariesall notices, minutes, consents, and all committees thereof or acting in lieu of such Board, other materials that it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive all materials distributed provides to all members of its outside (non-employee) directors at the board of directors (same time and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members provided to such directors. Notwithstanding the foregoing, the Observer right granted in this Section 6.1(b) (Board Observer) will terminate in the event that (1) Astellas ceases to hold 100% of PTI’s aggregate issued and outstanding capital stock or instruments convertible or exercisable into capital stock (all on an as-converted basis) issued to Astellas in accordance with Section 6.1(a) (Equity Investment), or (2) there occurs a Change of Control of PTI or an initial public offering of PTI securities. The Observer will execute a customary CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. Confidential confidentiality agreement pursuant to which he or she would agree to hold in confidence all information provided to him or her in his or her capacity as an Observer. PTI may withhold any information and exclude the Board, Observer from any meeting or portion thereof if PTI reasonably determines in good faith that access to such information or attendance at such meeting (vi) such Board Observer shall maintain could adversely affect the confidential nature of the information regarding the Company attorney-client privilege between PTI and its subsidiaries made available counsel, or provided (ii) may result in disclosure of trade secrets. In addition, PTI may withhold any information and exclude the Observer from any meeting or portion thereof for reasonable competitive considerations, such as where PTI reasonably determines in good faith that there is a conflict of interest between the Astellas (or the Observer) and PTI with respect to the Board subject matter of such information or that is to be discussed at such meeting (or portion thereof). Furthermore, PTI reserves the right to exclude the Observer in connection with its role as such (such informationfrom any executive, the “Board Information”) and not use any Board Information except solely within the scope audit, or compensation committee meetings of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information)Directors.
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.
Appears in 1 contract
Sources: Collaboration and License Agreement (Proteostasis Therapeutics, Inc.)
Board Observer. ALU Part shall be entitled to have one representative attend all meetings of the Company Board and each committee of the Company Board as an observer, but such observer shall have no voting rights (the “ALU Part Observer”). The Company shall provide the ALU Part Observer with notice of all meetings of the Company Board and each committee of the Company Board and all written materials distributed to the members of the Company Board and the members of each committee of the Company Board, in each case at the same time and in the same manner as such notices and materials are provided to members of the Company Board and members of the committees of the Company Board; provided, however, that ALU Part may request that the Company cease providing material non-public information to the ALU Part Observer at any time; and provided further, that the Company reserves the right to exclude the ALU Part Observer from access to any of such materials or meetings or portions thereof if and to the extent that in the good faith judgment of a majority of the directors of the Company (or the majority of the subject Board committee) after obtaining the advice of counsel, (i) such exclusion is reasonably necessary to preserve the Company’s attorney-client privilege; (ii) ALU Part has a business or financial interest (other than by reason of its interest as a stockholder of the Company) that would reasonably be expected to pose a conflict of interest for ALU Part and, if the ALU Part Observer were a member of the Company Board rather than an observer, it would be advisable under applicable law for the ALU Part Observer to recuse himself or herself due to such conflict of interest; (iii) such access or sharing of information with the ALU Part Observer would reasonably be expected to cause substantial harm to the Company’s business; or (iv) such access or sharing of information would result in disclosure of confidential information to the ALU Part Observer regarding ALU Part’s competitors, including without limitation, such competitor’s product road maps, terms of sale and contractual or other arrangements. Any ALU Part Observer shall agree to hold in confidence any information provided to him or her in accordance with the terms of a confidentiality agreement to be entered into that is reasonably satisfactory to the Company and such ALU Part Observer, it being understood that any information provided to the ALU Part Observer may be provided to directors, officers and employees of ALU Part and its Affiliates who have a business need to know such information and an obligation to hold such information in confidence in accordance with an enforceable non-disclosure agreement between the Company and ALU Part or one of its Affiliates, currently, the Master Non-Disclosure Agreement No. 7035948 effective as of July 19, 2007 between the Company and Compagnie Financiere Alcatel-Lucent, an Affiliate of ALU Part (the “MNDA”), and ALU Part further agrees that it, or one of its Affiliates will enter into a subordinate disclosure agreement with the Company covering the subject matter of this Section 4.13. The Company agrees that it will indemnify the ALU Part Observer for any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that the ALU Part Observer may suffer or incur as a result of or relating to, and advance expenses to the ALU Part Observer in connection with, any actions, suits, or proceedings brought against the ALU Part Observer, or to which the ALU Part Observer is otherwise made a party or witness, by reason of the fact that he or she is the ALU Part Observer; provided, however, that nothing in this Section 4.13 shall obligate the Company to pay any amounts (i) in the event the ALU Part Observer commits a tortious act; or (ii) in the event of a breach by ALU Part or the ALU Part Observer of the obligations contained in this Section 4.13. The Company shall reimburse the ALU Part Observer for expenses incurred in connection with attendance at Company Board or committee meetings in accordance with the Company’s travel policy. The rights of ALU Part with respect to this Section 4.13 shall apply until the earlier of (i) (a) The the consolidation or merger of the Company shall ensure thatwith or into another Person (unless the Company is the surviving corporation and the shareholders of the Company prior to such merger or consolidation continue to hold immediately thereafter a majority of the Company’s voting stock), at any time from (b) the Acquisition Closing Datepurchase, tender or offer that is accepted by the holders of more than 50% of the aggregate principal amount outstanding shares of the Company’s voting stock, or (c) the consummation of a stock purchase agreement or other business combination with another Person whereby the Person acquires more than 50% of the outstanding Notes (including, without limitation, Additional Notes) shall have the right to appoint one non-voting observer (“Board Observer”) to the Board of Directors (the “Board”) shares of the Company Company’s voting stock, or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled time as ALU Part ceases to receive all materials distributed to all members hold at least 4,878,048 of the board of directors Common Shares purchased from the Company pursuant to this Agreement (and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilegestock splits, confidentiality obligations recapitalization and conflicts of interestthe like); provided, (iv) however, that ALU Part may determine to forego its right to an observer at any time prior thereto, at which time the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses shall no longer have an obligation to provide notices of meetings or written materials related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information)thereto.
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ikanos Communications, Inc.)
Board Observer. (a) The Company shall ensure thatFrom the Closing Date and until the date the Sponsor Parties, at any time from including the Acquisition Closing Dateparties to the Interim Financing named on Schedule III, the holders members of more the Sponsor and their respective Permitted Transferees, in the aggregate, Beneficially Own less than 505% of the aggregate principal amount outstanding Holdco Ordinary Shares (after taking into account any securities of Holdco Beneficially Owned by the outstanding Notes (including, without limitation, Additional NotesSponsor Parties convertible into Holdco Ordinary Shares) shall have the right to appoint one non-voting observer (“Board Observer”) to the Board of Directors (the “BoardSponsor Sunset Date”) of ), the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer Sponsor shall be entitled to receive all materials distributed to all members of designate one (1) observer on the board of directors of Holdco (and all members of each committeethe “Holdco Board”) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such “Sponsor Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full The Sponsor Board Observer may resign at any time upon written notice to the Holdco Board.
(c) The Sponsor shall have the exclusive right to designate the Sponsor Board Observer to fill any vacancies created by reason of the Notes death, removal or satisfactionresignation of a Sponsor Board Observer, discharge and Holdco shall take all reasonably necessary action to cause any such vacancy to be filled by a replacement Sponsor Board Observer as promptly as reasonably practicable.
(d) H▇▇▇▇▇ agrees that it will invite the Sponsor Board Observer to attend, in a non-voting observer capacity, all meetings of the Holdco Board for the purposes of permitting the Sponsor Board Observer to have current information with respect to the affairs of Holdco and the actions taken by the board of directors; provided, that the Sponsor Board Observer may be excluded from all or any portion of any such meeting of the Holdco Board to the extent that the Holdco Board determines in good faith and upon the advice of counsel to Holdco that such exclusion is required to preserve the attorney-client privilege between Holdco and its counsel, or to the extent the respective interests of Holdco, on one hand, and the Sponsor, on the other termination hand, as to the matter(s) to be discussed or actions to be taken during such portion of this Indenture and as long as warrants issued such meeting of the Holdco Board, conflict or could be perceived to conflict (in connection with the offering as described in this offering circular remain outstanding, warrant holders good faith judgment of the Holdco Board).
(e) In no event shall the Sponsor Board Observer: (i) be deemed to be a member of the Holdco Board or any committee thereof; (ii) have the right to appoint one vote on any matter under consideration by Holdco Board Observer or otherwise have any power to cause Holdco to take, or not to take, any action; or (iii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to Holdco or its shareholders or any duties (fiduciary or otherwise) otherwise applicable to the Board directors of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such BoardHoldco. As a non-voting observer, subject to the conditions proviso in Section 1.10(d), the Sponsor Board Observer will also be provided (concurrently with delivery to the directors of Holdco and requirements listed abovein the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting; provided, that the failure to deliver or make available one or more of the items described in this sentence shall not affect the validity of any action taken by the Holdco Board.
(f) Notwithstanding anything to the contrary herein, prior to the Sponsor Board Observer being entitled to attend any meeting of the Holdco Board or receive the information specified in Section 1.10(e), the Sponsor Board Observer shall execute and deliver to Holdco a customary confidentiality agreement in form and substance reasonably satisfactory to Holdco.
Appears in 1 contract
Sources: Sponsor Support Agreement (Holdco Nuvo Group D.G Ltd.)
Board Observer. (a) The Unless the Company shall ensure that, at any time from the Acquisition Closing Date, the holders of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right has already voluntarily allowed an individual to appoint one non-voting act as a nonvoting observer (“Board Observer”) to the Board of Directors on behalf of the Purchaser, if the Purchaser and its Affiliates in the aggregate hold at least 4.625% of the issued and outstanding Ordinary Shares (either in the “Board”form of Ordinary Shares or ADSs) of the Company, the Purchaser shall have the right, but not the obligation, to appoint an employee of the Purchaser or its Affiliates, or an advisor or consultant engaged by the Purchaser or its Affiliates, to act as a nonvoting observer to the Board of Directors, provided that the Purchaser’s right under this Section 4.5 shall terminate if at any time (i) the Purchaser and its Affiliates hold less than 3.083% of the then-issued and outstanding share capital of the Company or equivalent governing body (ii) the Purchaser and its Affiliates hold less than 4.625% (but more than 3.083%) of the then-issued and outstanding share capital of the Company if, for purposes of sub-clause (ii), the reduction in such percentage is attributable to the Purchaser or any holding company or subsidiary its Affiliates engaging in a Disposal of the Company from time to time that effectively functions as Ordinary Shares (or ADSs), which Disposal results in the “board” of the Company Purchaser and its subsidiariesAffiliates in the aggregate holding fewer number of ordinary shares than they originally held to initially attain the right to appoint a board observer pursuant to this Section 4.5, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined failure by the Company, acting reasonably, Purchaser (iior its Affiliates) to participate in an offering or sale of Ordinary Shares extended to the Purchaser (or its Affiliates) on a pro rata basis. Any individual to be appointed as a nonvoting observer shall have the skill and integrity appropriate to participate in a board meeting of a listed company in the life sciences sector. Any such Board Observer observer shall be entitled to receive all notices, written documents and materials distributed provided to all the directors at same time as the members of the board Board of directors (Directors and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will to be entitled invited to and to attend all meetings and to receive all information and notices provided to members of the boardBoard of Directors and its committees in a nonvoting capacity. Any such observer shall execute a confidentiality agreement in a 18 reasonable form approved by the Board of Directors for such purpose. The Board of Directors shall be permitted to exclude such observer from attending any portion of any meetings and receiving any portion of any information, subject to customary exceptions for privilege, confidentiality obligations and conflicts if attendance at such portion of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related meeting or access to such Board Observer’s role or information could adversely affect the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding attorney-client privilege between the Company and its subsidiaries made available counsel, result in disclosure of trade secrets or provided to a conflict of interest, or interfere with the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope fiduciary duties of the Board Observerof Directors. The Purchaser’s role rights as set forth in this Section 4.5 shall terminate if the Purchaser’s rights in relation to the appointment of a Board Observer and not disclose director are exercisable pursuant to Section 4.6(a). For the Board Information other than to such avoidance of its affiliates with a need to know doubt, the Board Information, Purchaser’s rights as set forth in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer this Section 4.5 shall be entitled to certain other rights reasonably acceptable to reinstated if the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have Purchaser no longer has the right to appoint one Board Observer a director pursuant to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed aboveSection 4.6(a).
Appears in 1 contract
Sources: Securities Subscription Agreement (General Atlantic LLC)
Board Observer. (ai) The Company shall ensure thatUntil such time as neither (x) the client funds or accounts (such funds and accounts, at any time from the Acquisition Closing Datecollectively, the holders “Nantahala Accounts”) under the management of more than 50% Nantahala Capital Management, LLC (“Nantahala”), nor (y) the client funds or accounts (such funds and accounts, collectively, the “Silverback Accounts” and, together with the Nantahala Accounts, the “Accounts”) under the management of Silverback Asset Management, LLC (“Silverback” and, together with N▇▇▇▇▇▇▇▇, the “Managers”) beneficially own at least thirty-five percent (35%) of the aggregate principal amount of the outstanding Series C Convertible Notes issued to such Accounts on the Closing Date (including, without limitation, Additional Notes) Series C Convertible Notes issued under the Exchange Agreements), the Accounts shall be entitled to have one individual (the right to appoint one non-voting observer (“Board Observer”) present (whether in person or by telephone) at all physical and telephonic meetings of the Company’s Board of Directors. The Board Observer shall not be entitled to vote at such meetings. The Board Observer may be excluded from certain confidential “closed sessions” of the Company’s Board of Directors to the extent (x) attendance thereat would jeopardize the “Board”) of the Company or equivalent governing body attorney client privilege of the Company or any holding company of its Subsidiaries or subsidiary would reasonably be expected to breach any confidentiality provisions binding the Company or any of its Subsidiaries or (y) any information to be discussed at such meeting would relate to any of the Company’s or its Subsidiaries’ strategy, negotiating positions or similar matters directly relating to any of the holders of Convertible Notes or directly relating to any refinancing or replacement of the Convertible Notes. Each Manager, on behalf of their respective Accounts, has the right to notify the Company in writing of the identity of the Board Observer (subject to the prior written consent of the other Manager which shall have been delivered to the Company). The Board Observer may be changed by either Manager, on behalf of their respective Accounts, upon notice thereof to the Company (and subject to the prior written consent of the other Manager which shall have been delivered to the Company).
(ii) Subject to the terms of the Manager Confidentiality Agreements (as defined herein), the Company shall send to the Manager at the same time such materials are distributed by or to the members of the Company’s Board of Directors, all of the notices, information and other materials that are distributed to the members of the Company’s Board of Directors with respect to the meetings of the Company’s Board of Directors, including, without limitation, copies of the minutes of all meetings of the Company’s Board of Directors (such notices, information and other materials, the “Board Materials”), but excluding any Board Materials to the extent that the Company’s Board of Directors determines that (x) delivery or receipt thereof by the Board Observer or any Manager would jeopardize the attorney client privilege of the Company from time or any of its Subsidiaries or would reasonably be expected to time that effectively functions as breach confidentiality provisions binding the “board” Company or any of its Subsidiaries or (y) any information disclosed in such materials directly relates to any of the holders of Convertible Notes or directly relates to any refinancing or replacement of the Convertible Notes. Any material provided to stockholders of the Company in connection with any meetings of stockholders shall also be provided to the Managers. Upon the written request of any of the Managers, the Company shall refrain from sending such notices, information and its subsidiaries, and all committees thereof or acting other materials to such Manager for so long as such Manager shall request.
(iii) If the Company proposes to take any action by written consent in lieu of such Boarda meeting of the Company’s Board of Directors, it being understood that (i) such the Company shall give notice thereof to the Board Observer must have adequate legal at the same time and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive all materials distributed to all members of the board of directors (and all members of each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other notice is given to the members of the BoardCompany’s Board of Directors, (v) such Board Observer shall maintain the confidential nature of the information regarding provided that the Company and its subsidiaries made available shall not be required to deliver such notice or provided otherwise disclose any information to the Board Observer in connection with its role as such (such information, pursuant to this Section 5(m)(iii) to the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by extent that the Company, acting reasonably, ’s Board of Directors determines that (vix) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided delivery or receipt thereof by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to or any Manager would jeopardize the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body attorney client privilege of the Company or any holding company of its Subsidiaries or subsidiary would reasonably be expected to breach confidentiality provisions binding the Company or any of its Subsidiaries or (y) any information disclosed in such materials directly relates to any of the holders of Series C Convertible Notes or directly relates to any refinancing or replacement of the Series C Convertible Notes.
(iv) Promptly upon receipt of a written demand (including documentation supporting such demand) from either or both of the Managers, the Company from time shall reimburse such Manager for the reasonable documented out-of-pocket expenses of the Board Observer incurred in connection with the attendance at such meetings of the Company’s Board of Directors on a basis consistent with its reimbursement policies for the Company’s Board of Directors; provided, that the Company shall not be required to time that effectively functions as reimburse any Manager for any expenses of the Board Observer pursuant to this Section 5(m)(iv) to the extent the Company has previously reimbursed such other Manager for the same expenses of the Board Observer pursuant to this Section 5(m)(iv).
(v) The rights of the Managers to designate the Board Observer, and the rights of any Board Observer to attend any meetings of the Company’s Board of Directors or receive any materials, in each case, pursuant to this Section 5(m), shall be expressly conditioned upon the execution, delivery and continued effectiveness of (x) a confidentiality and non-disclosure agreement among the Company, Nantahala (on behalf of the Nantahala Accounts) and the Board Observer (the “board” Nantahala Confidentiality Agreement”), and (y) a confidentiality and non-disclosure agreement among the Company, Silverback (on behalf of the Company Silverback Accounts) and its subsidiariesthe Board Observer (the “Silverback Confidentiality Agreement” and, together with the Nantahala Confidentiality Agreement, the “Manager Confidentiality Agreement”), in each case, in form and all committees thereof or acting in lieu of such Board, subject substance reasonably satisfactory to the conditions Company, the Board Observer and requirements listed abovethe respective Manager (on behalf of their respective Accounts).
Appears in 1 contract
Board Observer. (aA) The Company Original Borrower and the Borrower (from the First Effective Date only) shall ensure procure that, at any time all times from and including the Acquisition Closing Date (or the First Effective Date, in the holders of more than 50% case of the aggregate principal amount Borrower) until and excluding the First Effective Date in the case of the outstanding Notes Original Borrower or the SPAC Listing Date in the case of the Borrower (includingeach, without limitationthe “Relevant Time”), Additional Notes) shall have a representative of the right to appoint one non-voting observer Agent or the Original Lender (or the Arranger acting on its behalf), or Eleuthera SPC (the “Board Observer”) to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive attend each Board Meeting on behalf of the Lenders on the condition that the Board Observer shall attend Board Meetings as an observer only and shall not:
(1) have any rights or liabilities in relation to the direction or conduct of any management of any member of the Group as a result of attending Board Meetings; or
(B) be entitled to vote at, or count in the quorum for, any Board Meeting. At all materials distributed times during the Relevant Time, the Borrower and/or Original Borrower (as the case may be) shall procure that the Board Observer is given notice of Board Meetings:
(1) as soon as reasonably practicable;
(2) no later than the time that notice of the relevant Board Meeting is given to all members of the board of directors of the Borrower generally;
(and all members 3) no later than the time that notice of each committeethe relevant Board Meeting is required to be given pursuant to the constitutional documents of the Borrower; and
(4) in their capacity as suchany event, no later than 10 Business Days prior to the relevant Board Meeting (iiiunless the Chairman of the Board of Directors reasonably deems it important for the commercial interest of the Borrower to convene the Board Meeting earlier than this).
(C) such At all times during the Relevant Time, the Borrower (or the Original Borrower, prior to the First Effective Date) shall procure that the Board Observer will not have voting power but will be entitled to attend is supplied with a copy of all meetings and to receive all information and notices provided relevant board papers which are dispatched to members of the board, subject board of directors of the Borrower for the purposes of a Board Meeting generally at the same time as they are dispatched to customary exceptions for privilege, confidentiality obligations and conflicts those members of interest, the board of directors of the Borrower (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of Original Borrower, as the case may be).
(D) The Agent, the Original Lender (or the Arranger acting on its duties behalf) or Eleuthera SPC agree that as a condition to their representative acting as a Board Observer Observer, such person shall undertake to cooperate with the Borrower and fulfil any and all necessary formalities requested by the competent authorities or by applicable laws, as well as comply with any applicable laws, in each case as the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided apply to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s their role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board InformationObserver, in each case subject to exceptions all cases during the Relevant Time only.
(E) Notwithstanding the foregoing, where the Borrower’s (or Original Borrower’s) board of directors resolve, acting reasonably and in good faith, that a matter to be agreed by discussed gives rise to an actual bona fide conflict of interest between the CompanyLenders and the Borrower (or, acting reasonablyprior to the First Effective Date, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by Original Borrower), the Board Observer may be excluded from the part of the meeting (and from the distribution list for any such associated written materials) where the matter giving rise to such conflict of interest is discussed, in all cases during the Relevant Time only.
(viiF) such Notwithstanding any other term in this Clause 18.8 (Board Observer shall be entitled Observer), on and from the SPAC Listing Date, if the Parties are unable to certain other rights reasonably acceptable obtain the necessary information pursuant to the Company terms of this Agreement and/or agree any suitable additional information rights (including whether by way of an amendment to the existing information covenants herein or otherwise), then the Borrower shall, at any time on or following the SPAC Listing Date, absent any such agreement or access to the relevant information above, grant the Arranger the right to not partake perform an audit at any time upon request which will include providing the Arranger with access to the Borrower’s premises and the right to inspecting the Borrower’s board minutes and books. The Arranger may at its discretion refrain from exercising the information and audit rights if the Arranger acting in any its sole discretion believes that such information or audit may provide it with material non-public information affecting the ability of the above activities or receive any of Lender Designate to sell the above information)SPAC Conversion Shares.
(bG) Upon redemption or repayment in full of the Notes or satisfactionIn this Clause 18.8 (Board Observer), discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one “Board Observer to the Board of the Company or equivalent governing body of the Company or Meeting” means any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.meeting of:
Appears in 1 contract
Sources: Term Facility Agreement (Rockley Photonics Holdings LTD)
Board Observer. (a) The Company shall ensure thatPrior to the Board Trigger Event, at any time from the Acquisition Closing Date, the holders Holders of more than 50% of the a majority in aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) shall have the right to appoint designate one representative (the “Observer”) to attend all meetings of the Board of Directors of Holdings as a non-voting observer (“Board Observer”) by notifying Holdings in writing or by directing the Trustee to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting notify Holdings in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board writing. The Observer shall be entitled to receive (i) notice of all materials distributed to all members meetings of the board Board of directors (and all members Directors of each committee) Holdings in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices the manner that notice is provided to members of the boardBoard of Directors of Holdings, subject (ii) receive all materials provided to customary exceptions for privilegemembers of the Board of Directors of Holdings, confidentiality obligations (iii) attend (whether in person, by telephone, or otherwise) all meetings of the Board of Directors of Holdings as a non-voting observer, and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other receive payment of reasonable and documented out customary fees and reimbursement of reasonable out-of-pocket expenses related paid to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the BoardBoard of Directors of Holdings; provided, (v) such Board that for avoidance of doubt, the Observer shall maintain not be entitled to receive any compensation or indemnity from Holdings or the confidential nature Company for acting in such capacity. The Holders of a majority in aggregate principal amount of the information regarding outstanding Notes may remove the Observer and replace the Observer in the event of the Observer’s removal, death or resignation by notifying the Company and in writing or by directing the Trustee to notify the Company in writing. Notwithstanding anything to the contrary contained herein, Holdings reserves the right to exclude any such Observer from the relevant portion of any meeting or any delivery of any particular materials if Holdings reasonably believes that: (i) upon the advice of counsel, attendance at such portion of such meeting or receipt of such materials would likely cause Holdings or any of its subsidiaries made available or provided to lose the Board Observer benefit of protection in connection with its role as respect of what would otherwise be privileged legal communications; (ii) attendance at such (such information, the “Board Information”) and not use any Board Information except solely within the scope portion of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided include discussions of matters with respect to which Holdings or any of its subsidiaries, on the one hand, and the Holders or the Observer, on the other, are directly adverse; (iii) upon the advice of counsel, attendance at such portion of such meeting or receipt of such materials is prohibited by a confidentiality agreement with a third party that is binding on Holdings or any of its subsidiaries; or (iv) attendance at such portion of such meeting or receipt of such materials would require Holdings to publicly disclose any non-public information in accordance with applicable law; provided, that with respect to the Board Observer provisions in clause (iii) and (vii) such Board Observer iv), Holdings shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board exclude the Observer if the Observer enters into a confidentiality agreement reasonably acceptable to Holdings and the Observer pursuant to which the Observer agrees to keep the matters discussed at such portion of such meeting or such particular materials, as applicable, confidential (to the Board extent required by such confidentiality agreement, in the case of clause (iii), or to the extent required so that the Company need not make such public disclosure in the case of clause (iv)). Holdings will provide reasonable advance notice if it intends to exclude the Observer from attending any portion of any meeting or equivalent governing body of from receiving any particular materials, describing the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiariesbasis for such exclusion, and all committees thereof or acting shall cooperate with the Observer in lieu good faith to limit to the maximum extent reasonably possible the degree to which the Observer will be excluded from such portions of such Board, subject to the conditions and requirements listed abovemeetings or receiving such materials.
Appears in 1 contract
Sources: Indenture (Webcraft LLC)
Board Observer. (a) The Company shall ensure that, at any time from For so long as the Acquisition Closing DateObligations are outstanding, the holders of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) Purchaser shall have the right to appoint one representative (the “Observer”) as a non-voting observer (the “Board Observer”) to the Board board of Directors directors of the Borrower (the “Board”) and each of its committees, which Observer shall be reasonably acceptable to the Borrower. The initial Observer shall be the Purchaser and the Borrower hereby approves the designation of the Company or equivalent governing body Purchaser as the initial Observer. Any subsequent Observer shall be designated by written notice from the Purchaser to the Borrower. The Observer shall have the right to attend (which attendance may occur telephonically at the election of the Company Observer) and participate in all meetings of the Board and any committees thereof. The Observer shall have no right to vote on any matter presented to the Board or any holding company or subsidiary committee thereof. The Borrower shall give the Observer written notice of each meeting thereof at the same time and in the same manner as the other members of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof Board or acting in lieu such committee receive notice of such Board, it being understood that (i) such Board meetings. The Borrower shall permit the Observer must have adequate legal to attend and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board participate in all meetings thereof. The Observer shall be entitled to receive all written materials distributed and other information given to all other members of the board Board and such committees in connection with such meeting or otherwise (including, for the avoidance of directors (and all members of each committee) in their capacity as suchdoubt, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all monthly information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer rights in the same manner as and scope prepared for use by management and the Board), at the same time such materials and information are given to the other members of the Board and such committees, and the Observer shall keep such materials and information confidential, and shall abide by the Borrower’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy. If the Borrower or any Subsidiary proposes to take any action by written consent in lieu of a meeting of the Board, (v) then the Borrower or such Board Subsidiary shall give written notice thereof to the Observer shall maintain describing the confidential nature and substance of such action and including the information regarding text of such written consents at the Company and its subsidiaries made available or same time as such written consents are provided to the Board members of the Board. The Borrower shall pay and reimburse the reasonable and documented out-of-pocket costs and expenses of the Observer incurred in connection with its role as traveling to and attending such (such information, the “Board Information”) and not use any Board Information except solely within the scope meetings of the Board Observer’s role as a Board and committees thereof. Notwithstanding anything contained in this Section 8.14 to the contrary, the Observer designated hereunder may be excluded from any meeting (or portion thereof), or denied access to any materials, if and not disclose to the extent the Board Information other than reasonably and in good faith determines (i) such recusal is reasonably necessary based on the advice of counsel to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonablypreserve attorney-client privilege, (viii) there exists, with respect to any deliberation or board or committee materials, an actual or potential conflict of interest between the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiariesObserver, and all committees thereof the Borrower or acting in lieu its Subsidiaries, as applicable, or (iii) based on the advice of counsel, such Board, subject to the conditions and requirements listed aboverecusal is required by Applicable Laws.
Appears in 1 contract
Board Observer. (a) The Company shall ensure that, at any time from 15.1 Commencing on the Acquisition Closing Datedate of this agreement, the holders board of more than 50directors of Opsys have the right to nominate an observer to attend all board meetings of CDT provided that such observer is approved as suitable by CDT, such approval not to be unreasonably withheld or delayed. After the exercise of the Opsys UK Option such right shall continue until Opsys ceases to hold an aggregate Shareholding in CDT of at least 4% of the aggregate principal amount whole of the outstanding Notes issued share capital of CDT. CDT shall provide the observer with reasonable prior written notice of all meetings (includingboth formal and informal) of the board of directors of CDT and such observer shall be entitled to all information, without limitationpapers and accounts presented to such directors in their capacity as directors. The expenses incurred by the observer in attending the meetings shall be for the account of Opsys until the date on which the Opsys UK Option or the Opsys Option is exercised and completed after which time such expenses are payable by and for the account of CDT.
15.2 If the Opsys Option is exercised, Additional Notes) the shareholders of Opsys on the date of such exercise shall have the right to appoint one non-voting an observer (“Board Observer”) subject to the Board terms referred to in sub-clause 15.1 above where such right shall continue for such time as such shareholders hold an aggregate shareholding in CDT of Directors (the “Board”) at least 4% of the Company or equivalent governing body whole of the Company or any holding company or subsidiary issued share capital of CDT.
15.3 Where the Company from time to time that effectively functions as the “board” Chairman of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the CompanyCDT, acting reasonably, (ii) such Board Observer shall considers that the observer has a direct commercial conflict relating to any matter to be entitled to receive all materials distributed to all members discussed at meetings of the board of directors of CDT, or the information to which he is entitled under sub-clause 15.1, then on request by CDT (and all members to be made one week in advance of each committee) in their capacity as such, (iii) such Board Observer will not meeting or the date on which the observer would otherwise have voting power but will be been entitled to attend all such information), the observer (at its discretion) shall either (a) absent itself from such meetings and part of such meetings and or forgo his entitlement to receive all information and notices provided to members of as the boardcase may be, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer an alternative observer to the Board of the Company meeting, or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions receive such information as the “board” of the Company and its subsidiariescase may be, and all committees thereof such observer to be approved as suitable by CDT, such approval not to be unreasonably withheld or acting in lieu of such Board, subject to the conditions and requirements listed abovedelayed.
Appears in 1 contract
Sources: Transaction Agreement (Cambridge Display Technology, Inc.)
Board Observer. (aA) The Company Original Borrower and the Borrower (from the Effective Date only) shall ensure procure that, at any time all times from and including the Acquisition Closing Date (or the Effective Date, in the holders of more than 50% case of the aggregate principal amount Borrower) until and excluding the Effective Date in the case of the outstanding Notes Original Borrower or the SPAC Listing Date in the case of the Borrower (includingeach, without limitationthe “Relevant Time”), Additional Notes) shall have a representative of the right to appoint one non-voting observer Agent or the Original Lender (or the Arranger acting on its behalf), or Eleuthera SPC (the “Board Observer”) to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer shall be entitled to receive attend each Board Meeting on behalf of the Lenders on the condition that the Board Observer shall attend Board Meetings as an observer only and shall not:
(1) have any rights or liabilities in relation to the direction or conduct of any management of any member of the Group as a result of attending Board Meetings; or
(B) be entitled to vote at, or count in the quorum for, any Board Meeting. At all materials distributed times during the Relevant Time, the Borrower and/or Original Borrower (as the case may be) shall procure that the Board Observer is given notice of Board Meetings:
(1) as soon as reasonably practicable;
(2) no later than the time that notice of the relevant Board Meeting is given to all members of the board of directors of the Borrower generally;
(and all members 3) no later than the time that notice of each committeethe relevant Board Meeting is required to be given pursuant to the constitutional documents of the Borrower; and
(4) in their capacity as suchany event, no later than 10 Business Days prior to the relevant Board Meeting (iiiunless the Chairman of the Board of Directors reasonably deems it important for the commercial interest of the Company to convene the Board Meeting earlier than this).
(C) such At all times during the Relevant Time, the Borrower (or the Original Borrower, prior to the Effective Date) shall procure that the Board Observer will not have voting power but will be entitled to attend is supplied with a copy of all meetings and to receive all information and notices provided relevant board papers which are dispatched to members of the board, subject board of directors of the Borrower for the purposes of a Board Meeting generally at the same time as they are dispatched to customary exceptions for privilege, confidentiality obligations and conflicts those members of interest, the board of directors of the Borrower (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of Original Borrower, as the case may be).
(D) The Agent, the Original Lender (or the Arranger acting on its duties behalf) or Eleuthera SPC agree that as a condition to their representative acting as a Board Observer Observer, such person shall undertake to cooperate with the Borrower and fulfil any and all necessary formalities requested by the competent authorities or by applicable laws, as well as comply with any applicable laws, in each case as the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided apply to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s their role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board InformationObserver, in each case subject to exceptions all cases during the Relevant Time only.
(E) Notwithstanding the foregoing, where the Borrower’s (or Original Borrower’s) board of directors resolve, acting reasonably and in good faith, that a matter to be agreed by discussed gives rise to an actual bona fide conflict of interest between the CompanyLenders and the Borrower (or, acting reasonablyprior to the Effective Date, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by Original Borrower), the Board Observer may be excluded from the part of the meeting (and from the distribution list for any such associated written materials) where the matter giving rise to such conflict of interest is discussed, in all cases during the Relevant Time only.
(viiF) such Notwithstanding any other term in this Clause 18.8 (Board Observer shall be entitled Observer), on and from the SPAC Listing Date, if the Parties are unable to certain other rights reasonably acceptable obtain the necessary information pursuant to the Company terms of this Agreement and/or agree any suitable additional information rights (including whether by way of an amendment to the existing information covenants herein or otherwise), then the Borrower shall, at any time on or following the SPAC Listing Date, absent any such agreement or access to the relevant information above, grant the Arranger the right to not partake perform an audit at any time upon request which will include providing the Arranger with access to the Borrower’s premises and the right to inspecting the Borrower’s board minutes and books. The Arranger may at its discretion refrain from exercising the information and audit rights if the Arranger acting in any its sole discretion believes that such information or audit may provide it with material non-public information affecting the ability of the above activities or receive any of Lender Designate to sell the above information)SPAC Conversion Shares.
(bG) Upon redemption or repayment in full of the Notes or satisfactionIn this Clause 18.8 (Board Observer), discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one “Board Observer to the Board of the Company or equivalent governing body of the Company or Meeting” means any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.meeting of:
Appears in 1 contract
Board Observer. (a) The Company shall ensure that, at any time from the Acquisition Closing Date, the holders of more than 50% of the aggregate principal amount of the outstanding Notes (including, without limitation, Additional Notes) Purchaser shall have the right to appoint one non-voting an observer to Maker’s board of directors (“Board Observer”) to the Board of Directors (the “Board”) of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company such person appointed by Purchaser from time to time that effectively functions as in accordance with this Section 5 being the “board” Observer”). The Observer shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇. If Purchaser ever wishes to appoint any replacement Observer, it shall submit the names of two qualified proposed individuals to Maker and Maker shall, within five (5) business after receiving such names, either choose one of those two individuals to be the replacement Observer or, if Maker determines, in its reasonable judgment, that either of the Company proposed Observer nominees has a conflict with the Company, notify Purchaser of its objection and request Purchaser to propose a replacement Observer nominee. Such right to appoint the Observer shall continue until Purchaser together with its affiliates own less than 16,259,285 shares of Maker’s common stock, as such number may be equitably adjusted to take into consideration any stock split, stock dividend, recapitalization or similar event (and for purposes of calculating such number of shares owned by Purchaser and its subsidiariesaffiliates, Purchaser shall be deemed to own (A) all shares of Maker’s common stock that it would own upon conversion of the Debenture excluding shares that would be received upon exercise of the warrants issued or issuable upon conversion of the Debenture and (B) all committees thereof shares of Maker’s common stock that its affiliate, Navy Capital Green Co-Invest, LLC, would own upon conversion of that Debenture of even date herewith in the principal amount of $4,504,457 executed by Maker in favor of Navy Capital Green Co-Invest, LLC excluding shares that would be received upon exercise of the warrants issued or acting in lieu issuable upon conversion of such Board, it being understood that debenture). For the avoidance of doubt (i) such Board the Observer must have adequate legal shall not be acting as a director and individual reputational capacity has no right to serve as vote on matters brought before the Board Observerboard of directors, as determined by has no fiduciary duties to the Companyshareholders of Maker, acting reasonably, and shall not be counted for purposes of establishing the presence of a quorum for a board of directors meeting; (ii) such Board the Observer shall be entitled to receive all copies of notices, minutes, consents and other materials distributed provided to all members of the board of directors (and all members of each committee) in their capacity as such, directors; (iii) such Board the Observer will not have voting power but will may be entitled excluded from discussions of certain matters or from receipt of materials if (a) the discussions or materials involve Purchaser or one of its affiliates, (b) the discussions or materials involve a company in which Purchaser or one of its affiliates maintains an investment or with respect to attend all meetings and to receive all information and notices provided to members of which Purchaser or the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts Observer has a conflict of interest, or (c) the board of directors reasonably determines that the Observer’s attendance for such discussions or receipt of such materials would adversely affect the Maker’s attorney client privilege; (iv) the Company will Observer shall sign Maker’s standard form of non-disclosure agreement and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy; (v) that the Observer acknowledges that his name may appear in Maker’s publicly filed disclosure documents if required by law; and (vi) the Observer shall be required to complete applications, and provide personal information (possibly including fingerprints and photographs), if required by applicable licensing authorities related to Maker’s businesses. Maker shall reimburse such Board Observer Purchaser for all reasonable travel and other reasonable and documented out out-of-pocket expenses related to such Board actually incurred by the Observer in connection with the Observer’s role or attendance at meetings of the performance board of its duties as a Board Observer directors, in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information)board are reimbursed.
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.
Appears in 1 contract
Board Observer. Subject to the provisions of this Section 5.4: (ai) The Company shall ensure that, so long as MCP and its Affiliates own in the aggregate at any time from the Acquisition Closing Date, the holders of more than 50least 66-2/3% of the aggregate principal amount Shares owned by MCP on the date of this Agreement (after giving effect to the outstanding Notes transactions pursuant to the Recapitalization Agreement), such number to be adjusted for any stock split, combination or similar change with respect to the Common Stock, (including, without limitation, Additional NotesA) a designee of MCP (reasonably acceptable to the Principal Stockholder) shall have the right to appoint attend all meetings of the Board of Directors (other than Board of Directors committee meetings) in a nonvoting observer capacity, to receive notice of such meetings and to receive all minutes, consents and other materials, financial or otherwise, which the Company provides to its Board of Directors ("Observer Rights"), (B) MCP shall have reasonable access during normal business hours to consult and advise the management of the Company and (C) MCP shall have the right to inspect the books and records of the Company, at MCP's expense, during normal business hours; and (ii) so long as UBS and its Affiliates own in the aggregate at least 66-2/3% of the Shares owned by UBS on the date of this Agreement (after giving effect to the transactions pursuant to the Recapitalization Agreement), such number to be adjusted for any stock split, combination or similar change with respect to the Common Stock, (A) a designee of UBS (reasonably acceptable to the Principal Stockholder) shall have Observer Rights, (B) UBS shall have reasonable access during normal business hours to consult and advise the management of the Company and (C) UBS shall have the right to inspect the books and records of the Company, at UBS's expense, during normal business hours. In the event that OGF loses the right to select one non-voting observer (“Board Observer”) nominee to the Board of Directors (by reason of a decline in its Share ownership level as provided above and MCP and UBS each lose their Observer Rights by reason of a decline in its Share ownership level as provided above, and OF, MCP and UBS and their respective Affiliates in the “Board”) aggregate own at least 33-1/3% of the Company Shares owned collectively by OF, MCP, UBS and their respective Affiliates on the date of this Agreement (after giving effect to the transactions pursuant to the Recapitalization Agreement), such number to be adjusted for any stock split, combination or equivalent governing body of similar change with respect to the Company or any holding company or subsidiary of Common Stock, such Stockholders shall collectively be entitled to (A) one designee (reasonably acceptable to the Company from time Principal Stockholder) with Observer Rights, (B) reasonable access during normal business hours to time that effectively functions as consult and advise the “board” management of the Company and its subsidiaries, (C) the right to inspect the books and all committees thereof or acting in lieu records of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonablyat such Stockholders' expense, (ii) such Board during normal business hours. The Company may require as a condition precedent to granting Observer shall be entitled to receive all materials distributed to all members of the board of directors (and all members of Rights under this Section 5.4 that each committee) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled person proposing to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope meeting of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full of the Notes or satisfaction, discharge or other termination of this Indenture and as long as warrants issued in connection with the offering as described in this offering circular remain outstanding, warrant holders shall have the right to appoint one Board Observer to the Board of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, subject to the conditions and requirements listed above.Directors and
Appears in 1 contract
Board Observer. (a) The Company shall ensure thatFrom the Closing Date and until the date the Sponsor Parties, at any time from including the Acquisition Closing Dateparties to the Interim Financing named on Schedule III, the holders members of more the Sponsor and their respective Permitted Transferees, in the aggregate, Beneficially Own less than 505% of the aggregate principal amount outstanding Holdco Ordinary Shares (after taking into account any securities of Holdco Beneficially Owned by the outstanding Notes (including, without limitation, Additional NotesSponsor Parties convertible into Holdco Ordinary Shares) shall have the right to appoint one non-voting observer (“Board Observer”) to the Board of Directors (the “BoardSponsor Sunset Date”) of ), the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such Board, it being understood that (i) such Board Observer must have adequate legal and individual reputational capacity to serve as the Board Observer, as determined by the Company, acting reasonably, (ii) such Board Observer Sponsor shall be entitled to receive all materials distributed to all members of designate one (1) observer on the board of directors of Holdco (and all members of each committeethe “Holdco Board”) in their capacity as such, (iii) such Board Observer will not have voting power but will be entitled to attend all meetings and to receive all information and notices provided to members of the board, subject to customary exceptions for privilege, confidentiality obligations and conflicts of interest, (iv) the Company will reimburse such Board Observer for all reasonable travel and other reasonable and documented out of-pocket expenses related to such “Sponsor Board Observer’s role or the performance of its duties as a Board Observer in the same manner as other members of the Board, (v) such Board Observer shall maintain the confidential nature of the information regarding the Company and its subsidiaries made available or provided to the Board Observer in connection with its role as such (such information, the “Board Information”) and not use any Board Information except solely within the scope of the Board Observer’s role as a Board Observer and not disclose the Board Information other than to such of its affiliates with a need to know the Board Information, in each case subject to exceptions to be agreed by the Company, acting reasonably, (vi) the Company will hold regular meetings of its Board and reasonable prior notice of the date of each such meeting will be provided by the Board Observer and (vii) such Board Observer shall be entitled to certain other rights reasonably acceptable to the Company (including the right to not partake in any of the above activities or receive any of the above information).
(b) Upon redemption or repayment in full The Sponsor Board Observer may resign at any time upon written notice to the Holdco Board.
(c) The Sponsor shall have the exclusive right to designate the Sponsor Board Observer to fill any vacancies created by reason of the Notes death, removal or satisfactionresignation of a Sponsor Board Observer, discharge and Holdco shall take all reasonably necessary action to cause any such vacancy to be filled by a replacement Sponsor Board Observer as promptly as reasonably practicable.
(d) ▇▇▇▇▇▇ agrees that it will invite the Sponsor Board Observer to attend, in a non-voting observer capacity, all meetings of the Holdco Board for the purposes of permitting the Sponsor Board Observer to have current information with respect to the affairs of Holdco and the actions taken by the board of directors; provided, that the Sponsor Board Observer may be excluded from all or any portion of any such meeting of the Holdco Board to the extent that the Holdco Board determines in good faith and upon the advice of counsel to Holdco that such exclusion is required to preserve the attorney-client privilege between Holdco and its counsel, or to the extent the respective interests of Holdco, on one hand, and the Sponsor, on the other termination hand, as to the matter(s) to be discussed or actions to be taken during such portion of this Indenture and as long as warrants issued such meeting of the Holdco Board, conflict or could be perceived to conflict (in connection with the offering as described in this offering circular remain outstanding, warrant holders good faith judgment of the Holdco Board).
(e) In no event shall the Sponsor Board Observer: (i) be deemed to be a member of the Holdco Board or any committee thereof; (ii) have the right to appoint one vote on any matter under consideration by Holdco Board Observer or otherwise have any power to cause Holdco to take, or not to take, any action; or (iii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to Holdco or its shareholders or any duties (fiduciary or otherwise) otherwise applicable to the Board directors of the Company or equivalent governing body of the Company or any holding company or subsidiary of the Company from time to time that effectively functions as the “board” of the Company and its subsidiaries, and all committees thereof or acting in lieu of such BoardHoldco. As a non-voting observer, subject to the conditions proviso in Section 1.10(d), the Sponsor Board Observer will also be provided (concurrently with delivery to the directors of Holdco and requirements listed abovein the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting; provided, that the failure to deliver or make available one or more of the items described in this sentence shall not affect the validity of any action taken by the Holdco Board.
(f) Notwithstanding anything to the contrary herein, prior to the Sponsor Board Observer being entitled to attend any meeting of the Holdco Board or receive the information specified in Section 1.10(e), the Sponsor Board Observer shall execute and deliver to Holdco a customary confidentiality agreement in form and substance reasonably satisfactory to Holdco.
Appears in 1 contract
Sources: Sponsor Support Agreement (LAMF Global Ventures Corp. I)