Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital and its Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall invite a person designated by RMB Capital and reasonably acceptable to the Company (the “Observer”) to attend meetings of the Board of Directors and the Bank Board (including any meetings of committees thereof on which the Board Representative would be permitted to attend) in a nonvoting, nonparticipating observer capacity. The Observer shall be entitled to attend such meetings only in the event RMB Capital does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting of the Board of Directors and the Bank Board at the same time and in the same manner as the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents provided, however, that (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital shall cause its Observer to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer from portions of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB Capital, the Transaction Documents, or any of RMB Capital’s rights or obligations under any of the Transaction Documents or any other matter that the Chairman of the Board of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observer. If RMB Capital and its Affiliates in the aggregate no longer have a Minimum Ownership Interest, RMB Capital will have no further rights under this Section 2. Exhibit 10.1
Appears in 1 contract
Board Observer. The Company hereby agrees that, Commencing upon Closing and ending on the earlier of (i) three (3) years from and after the Closing Date, for so long Date and (ii) such time as RMB Capital and its Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall invite a person designated by RMB Capital and reasonably acceptable to the Company Pxxx Xxxxxxxx (the “Board Observer”) is no longer employed by TheMaven or any Affiliate thereof, including the Surviving Corporation, the Board Observer shall have the right to attend all meetings of the Board board of Directors directors of TheMaven (the “TheMaven Board”) and the Bank Board (including any meetings each of committees thereof on which the Board Representative would be permitted to attend) its committees, in a nonvotingnon-voting, nonparticipating observer capacity. The Board Observer may participate fully in discussions of all matters brought to the TheMaven Board or any committee thereof, as the case may be, for consideration, but in no event shall be entitled to attend such meetings only in the event RMB Capital does not have a Board Representative on the Board Observer (i) be deemed to be a member of Directors and the Bank Board. The TheMaven Board or any committee thereof, (ii) without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to TheMaven or its stockholders by virtue of the Board Observer shall not possessing and/or exercising any rights under this Section 4.9 or (iii) have any the right to vote on propose or offer any matter presented motions or resolutions to the Board of Directors or the Bank TheMaven Board or any committee thereof. The Company TheMaven shall give (i) facilitate the Observer written notice of each meeting attendance of the Board Observer at meetings of Directors TheMaven Board and each committee thereof in the Bank same manner as the members of TheMaven Board, including by any means contemplated by the by-laws of TheMaven as in effect from time to time (including, for the avoidance of doubt, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other) and (ii) provide to the Board Observer copies of all notices (including notices of meetings of TheMaven Board or any committee thereof), minutes, consents (including actions by unanimous written consent in lieu of a meeting) and other materials that it provides to members of TheMaven Board (collectively, "Board Materials"), including any draft versions, proposed written consents, and exhibits and annexes to any such materials, at the same time and in the same manner as such information is delivered to the members Board members. Notwithstanding anything to the contrary in this Section 4.9, the Board Observer shall (i)(A) be excluded from the applicable portion of any meeting and (B) not be provided with any Board Materials, in each case of (A) and (B), to the extent TheMaven Board determines in good faith that attendance at a portion of a meeting of TheMaven Board or committee thereof or the provision of such Board Materials could jeopardize the attorney-client privilege or contravene any Legal Requirements or Contract to which TheMaven is a party that is in existence as of the date of this Agreement, without giving effect to any amendments thereto entered into after the date of this Agreement; provided, however, that in the event that the attendance of the Board Observer at such portion of Directors such meeting and/or the provision of such Board Materials could reasonably be expected to violate any such Legal Requirement or Contract or jeopardize any attorney-client privilege, TheMaven and the Bank Board Observer shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence and (ii) prior to exercising any rights under this Section 4.9, enter into a confidentiality agreement with TheMaven containing terms substantially similar to those required by TheMaven of the other members of TheMaven Board in their capacities as such. TheMaven agrees (i) to indemnify the case may be)Board Observer, shall provide and to pay in advance any expenses of the Board Observer with all written materials and other information given incurred in defending a civil or criminal action, suit or proceeding, to the same extent provided by TheMaven to members of the TheMaven Board under its certificate of Directors or the Bank Board (incorporation and by-laws as the case may be) at the same in effect from time such materials and information are given to time with respect to such members’ activities as members of TheMaven Board (provided, however, that the Board Observer shall not be provided have any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu such rights of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date indemnification or advancement of such consent describing the nature and substance of such action and including the proposed text of such written consents provided, however, that (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital shall cause its Observer to agree to hold in confidence and trust and to act in a fiduciary manner expenses with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known any indemnifiable Losses claimed by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer from portions of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB Capital, the Transaction Documents, or any of RMB Capital’s rights or obligations under any of the Transaction Documents TheMaven Indemnified Persons against the Board Observer in his capacity as an Indemnity Stockholder pursuant to Section 10) and (ii) TheMaven’s obligations under clause (i) constitute third-party rights granted to the Board Observer by TheMaven and do not constitute rights to indemnification or any other matter that the Chairman advancement of expenses as a result of the Board Observer serving as a director, officer, employee or agent of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observer. If RMB Capital and its Affiliates in the aggregate no longer have a Minimum Ownership Interest, RMB Capital will have no further rights under this Section 2. Exhibit 10.1TheMaven.
Appears in 1 contract
Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital EJF and its Affiliates own in the aggregate have a 5.0% of the Common Stock then outstanding (“Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board”), the Company shall invite a person designated by RMB Capital EJF and reasonably acceptable to the Company (the “Observer”) to attend meetings of the Board of Directors and the Bank Board (including any meetings of committees thereof on which the Board Representative unless such attendance would be permitted inconsistent with commitments that EJF has provided to attendthe Federal Reserve in connection with the transaction) in a nonvoting, nonparticipating observer capacity. The Observer shall be entitled to attend such meetings only in the event RMB Capital does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting of the Board of Directors and the Bank Board at the same time and in the same manner as the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents provided, however, that (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital EJF shall cause its Observer to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer from portions of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB CapitalEJF, the Transaction Documents, or any of RMB CapitalEJF’s rights or obligations under any of the Transaction Documents or any other matter that the Chairman of the Board of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital EJF provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital EJF merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital EJF covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observer. If RMB Capital EJF and its Affiliates in the aggregate no longer have a Minimum Ownership Interest, RMB Capital EJF will have no further rights under this Section 21. Exhibit 10.1
Appears in 1 contract
Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital Castle Creek and its Affiliates own in the aggregate have a Minimum Ownership Interest50% or more of all of the Shares purchased by Castle Creek and its Affiliates pursuant to the Purchase Agreement, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall invite a person designated by RMB Capital and reasonably acceptable to the Company Castle Creek (the “"Observer”") to attend meetings of the Board of Directors and the Bank Board (including any meetings of committees thereof on which the Board Representative would be permitted to attend) in a nonvoting, nonparticipating observer capacity. The Observer shall be entitled to attend such meetings only in the event RMB Capital Castle Creek does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting of the Board of Directors and the Bank Board at the same time and in the same manner as the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents provided, however, that (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital shall cause its Observer to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer from portions of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB Capital, the Transaction Documents, or any of RMB Capital’s rights or obligations under any of the Transaction Documents or any other matter that the Chairman of the Board of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observerconsents. If RMB Capital Castle Creek and its Affiliates in the aggregate no longer have a Minimum Ownership Interestown in the aggregate 50% or more of all of the Shares purchased by Castle Creek and its Affiliates pursuant to the Purchase Agreement, RMB Capital Castle Creek will have no further rights under this Section 2. Exhibit 10.1.
Appears in 1 contract
Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital and its Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company Lender shall invite a person designated be entitled to designate one (1) individual appointed by RMB Capital and reasonably acceptable Lender by written notice to the Company Loan Parties from time to time (the “Observer”) ). The Loan Parties agree that so long as any balance is due to Lender under this Loan Agreement, Lender shall be invited to attend all meetings of the Board board of Directors directors (or equivalent governing body) of each Loan Party, and the Bank Board (including any meetings of committees thereof on which (collectively, the Board Representative would be permitted to attend) “Boards” and individually, a “Board”), in a nonvoting, nonparticipating non-voting observer capacity. The Observer shall be entitled to attend such meetings only in the event RMB Capital does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company Each Loan Party shall give the Observer written notice of each meeting of the Board of Directors and the Bank each Board at the same time and in the same manner as the members of such Boards. Subject to the Board of Directors or the Bank Board (as the case may be)confidentiality restrictions described below, shall provide the Observer with shall be entitled to receive all written materials and other information given to members of the Board of Directors Boards, in connection with such meeting or the Bank Board (as the case may be) otherwise, at the same time such materials and information are given to the members of the Boards. Notwithstanding the preceding, each Loan Party reserves the right to withhold any information and to exclude such Observer from any meeting, or any portion thereof, as is determined in good faith by a majority of the members of the applicable Board or the chairman of any committee thereof to be necessary for purposes of confidentiality or attorney-client privilege, provided that (provided, however, that i) such Loan Party gives the Observer and the Lender prior written notice of such exclusion, which notice shall not be provided any confidential supervisory information) and shall permit include a general summary of what the Observer to attend as an observer at all meetings thereof, is being excluded from and (ii) any meeting from which the Observer is excluded only addresses the issues presented in the event notice provided to the Company Lender and Observer contemplated in clause(i) above. If a Loan Party proposes to take any action by written consent in lieu of a meetingmeeting of any of the Boards, the Company such Loan Party shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents providedconsents. Each Loan Party agrees that all matters concerning strategy, howeverfinancial health or performance (including, that but not limited to, the annual budget), financings, fundamental changes (1) including, but not limited to, sales or other dispositions of all or a substantial portion of any business), changes in the business and business activities of the Loan Parties or offerings of securities with respect to any Loan Party shall be decided by the Boards or the Observer may shall be excluded from executive sessions comprised solely invited to the board of independent directors by (or equivalent) meeting of such other entity to the Chairman extent such matters are being discussed in substantial detail at such board meeting. The Loan Parties shall pay the reasonable out-of-pocket costs and expenses of the Board (or, if applicable, the lead or presiding independent director) if, Observer incurred in the written advice of counsel, connection with attending such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation meetings of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar lawBoards. Lender agrees, and (3) RMB Capital shall Lender will cause its any Observer of Lender to agree agree, to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished)so provided. The Company also may exclude the Observer from portions confidentiality provisions hereof will survive any termination of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB Capital, the Transaction Documents, or any of RMB Capital’s rights or obligations under any of the Transaction Documents or any other matter that the Chairman of the Board of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observer. If RMB Capital and its Affiliates in the aggregate no longer have a Minimum Ownership Interest, RMB Capital will have no further rights under this Section 2. Exhibit 10.1Loan Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement
Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital SVI and its Affiliates own in the aggregate have a 5.0% of the Common Stock then outstanding (“Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board”), the Company shall invite a person designated by RMB Capital SVI and reasonably acceptable to the Company (the “Observer”) to attend meetings of the Board of Directors and the Bank Board (including any meetings of committees thereof on which the Board Representative unless such attendance would be permitted inconsistent with commitments that SVI has provided to attendthe Federal Reserve in connection with the transaction) in a nonvoting, nonparticipating observer capacity. The Observer shall be entitled to attend such meetings only in the event RMB Capital does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting of the Board of Directors and the Bank Board at the same time and in the same manner as the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents provided, however, that (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital SVI shall cause its Observer to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer from portions of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB CapitalSVI, the Transaction Documents, or any of RMB CapitalSVI’s rights or obligations under any of the Transaction Documents or any other matter that the Chairman of the Board of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital SVI provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital SVI merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital SVI covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observer. If RMB Capital SVI and its Affiliates in the aggregate no longer have a Minimum Ownership Interest, RMB Capital SVI will have no further rights under this Section 21. Exhibit 10.1
Appears in 1 contract
Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital Castle Creek and its Affiliates own in the aggregate have a Minimum Ownership Interest50% or more of all of the Shares purchased by Castle Creek and its Affiliates pursuant to the Purchase Agreement, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall invite a person designated by RMB Capital and reasonably acceptable to the Company Castle Creek (the “Observer”) to attend meetings of the Board of Directors and the Bank Board (including any meetings of committees thereof on which the Board Representative would be permitted to attend) in a nonvoting, nonparticipating observer capacity. The Observer shall be entitled to attend such meetings only in the event RMB Capital Castle Creek does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting of the Board of Directors and the Bank Board at the same time and in the same manner as the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents provided, however, that (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Bank Board shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital shall cause its Observer to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer from portions of meetings of the Board of Directors as well as the Bank Board to the extent that the Board of Directors or the Bank Board, as the case may be, will, in any such portion thereof be discussing any matters related to RMB Capital, the Transaction Documents, or any of RMB Capital’s rights or obligations under any of the Transaction Documents or any other matter that the Chairman of the Board of Directors or the Chairman of the Bank Board determines in good faith is or may be adverse to the interests of RMB Capital provided, however, no matter shall be deemed to be adverse to the interests of RMB Capital merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital covenants and agrees to hold all information obtained from its Observer as provided in the prior sentence in confidence to comply with all requirements and obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the extent (if at all) applicable to the Observer. If RMB Capital and its Affiliates in the aggregate no longer have a Minimum Ownership Interest, RMB Capital will have no further rights under this Section 2. Exhibit 10.1written
Appears in 1 contract
Samples: Castle Creek Capital Partners VI, LP
