Common use of Board Observer Clause in Contracts

Board Observer. a) For purposes of this Section 9, the term “Company” refers to each of Community Shores and the Bank. Commencing upon the closing of the Rights Offering, the Company will permit the Backstop Party to designate, at its sole discretion, one (1) individual to attend all Board of Directors meetings of the Company as an observer (the “Board Observer”) for the periods specified in Subsection (a)(i) below. For the avoidance of doubt, the Board Observer shall not have voting rights or fiduciary obligations to the Company or its shareholders, but shall be bound by the same confidentiality and i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as the members of the Board. i. The initial Board Observer designated by the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until the Company’s annual meeting of the Board in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual to serve as a Board Observer, but the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board Observer. ii. The Company will provide the Board Observer with actual notice of all regular and special meetings of the Company’s Board of Directors in the same manner as provided to directors, and will provide to such Board Observer a copy of all materials and information distributed at or prior to such meetings or otherwise to the directors of the Company. Such meetings will be held in person at least quarterly. The Board Observer shall execute a confidentiality agreement in form and substance reasonably satisfactory to the Company prior to participating in a meeting of the Board or receiving related materials and information. Notwithstanding the foregoing, (1) the Board Observer may not attend any portion of a meeting of the Board during which a transaction or agreement with or for the benefit of the Backstop Party or any affiliate is being considered by the Board; (2) the Board shall have the right to require the Board Observer to leave any meeting if the Board needs to deliberate independently; and (3) the Board may exclude the Board Observer from any meeting or portion thereof if access to information discussed or presented or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counsel. Attendance of a Board Observer at a meeting of the Board shall not be required to establish a quorum for such meeting. b) The Backstop Party may, at any time, terminate its right under this Section 9 by providing written notice of such termination to the Company. The rights provided by this Section 9 may not be assigned by the Backstop Party.

Board Observer. aA Board Representative appointed pursuant to Section 1(a)(i)(B) For purposes or 1(a)(ii) shall have the right to present matters for consideration by the Board and to speak on matters presented by others at such meetings of the Board. Subject to the confidentiality provisions of this Section 93 and any applicable related person, the term “Company” refers to each of Community Shores and the Bank. Commencing upon the closing recusal or similar policy or practice of the Rights OfferingCompany, the Company will permit the Backstop Party to designate, at its sole discretion, one (1) individual to attend all Board of Directors meetings of the Company as an observer (the “Board Observer”) for the periods specified in Subsection (a)(i) below. For the avoidance of doubt, shall cause the Board Observer shall not have voting rights or fiduciary obligations Representative to be provided with all communications and materials that are provided by the Company or its shareholders, but shall be bound by the same confidentiality and i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as consultants to the members of the Board. i. The initial Board Observer designated by generally, at the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until the Company’s annual meeting of the Board in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 same time and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual to serve as a Board Observer, but the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board Observer. ii. The Company will provide the Board Observer with actual notice of all regular and special meetings of the Company’s Board of Directors in the same manner as that such communications and materials are provided to directorssuch members, including all notices, board packages, reports, presentations, minutes and consents. The Board Representative shall be entitled to meet and consult with the senior executive management team of the Company on a quarterly basis to discuss the quarterly and annual business plans of the Company and the Company’s subsidiaries and to review the progress of the Company and the Company’s subsidiaries in achieving their plans. In addition, upon request to the chief executive officer of the Company, the members of the senior executive management team of the Company shall make themselves available during normal business hours to meet with the Board Representative on an interim basis, as the Board Representative may reasonably request from time to time, and will provide to such Board Observer a copy as would not unreasonably interfere with the duties of all materials and information distributed at or prior to such meetings or otherwise to the directors members of the senior executive management team of the Company. Such meetings will be held in person at least quarterly. The Board Observer shall execute a confidentiality agreement in form and substance reasonably satisfactory Notwithstanding any other provision of this Section 3 to the contrary, the Company prior to participating in a meeting of the Board or receiving related materials and information. Notwithstanding the foregoing, (1) the Board Observer may not attend any portion of a meeting of the Board during which a transaction or agreement with or for the benefit of the Backstop Party or any affiliate is being considered by the Board; (2) the Board shall have the right to require keep confidential from the Board Observer to leave any meeting if Representative for such period of time as the Company or the Board needs to deliberate independently; deems reasonable any information and (3) the Board may exclude the Board Observer from any meeting or portion thereof if access to information discussed or presented or attendance at such meeting would adversely affect the attorney-client privilege between copies of written materials the Company and its counselis required by law or agreement with a third party to keep confidential. Attendance of As a Board Observer at a meeting condition of the Board shall not be required to establish a quorum for such meeting. b) The Backstop Party may, at any time, terminate its right exercise of his or her rights under this Section 9 by providing written notice 3, the Board Representative shall enter into such agreements or undertakings with the Company to maintain the confidentiality of information provided to them in connection with the exercise of such termination to rights as the Company. The rights provided by this Section 9 Company may not be assigned by the Backstop Partyreasonably request.

Board Observer. a) For purposes of this A Board Observer appointed pursuant to Section 9, 1 shall have the term “Company” refers right to each of Community Shores present matters for consideration by the Board and the Bank. Commencing upon the closing of the Rights Offering, the Company will permit the Backstop Party to designate, speak on matters presented by others at its sole discretion, one (1) individual to attend all Board of Directors such meetings of the Company as an observer (Board. A Board Observer shall not be entitled to attend meetings of any Board committee except for meetings of special or standing committees to which the “Board Observer”) for Observer has been granted in writing by the periods specified in Subsection (a)(i) belowBoard the right to attend one or more such meetings. For the avoidance of doubt, the A Board Observer shall not have voting rights the right to vote on any matter presented to the Board or fiduciary obligations any committee thereof. Subject to the confidentiality provisions of this Section 3 and any applicable related person, conflict of interest, recusal or similar policy or practice of the Company, the Company shall cause the Board Observer to be provided with all communications and materials that are provided by the Company or its shareholders, but shall be bound by the same confidentiality and i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as consultants to the members of the Board. i. The initial Board Observer designated by generally, at the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until the Company’s annual meeting of the Board in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 same time and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual to serve as a Board Observer, but the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board Observer. ii. The Company will provide the Board Observer with actual notice of all regular and special meetings of the Company’s Board of Directors in the same manner as that such communications and materials are provided to directorssuch members, including all notices, board packages, reports, presentations, minutes and will provide to such Board Observer a copy of all materials and information distributed at or prior to such meetings or otherwise to the directors of the Company. Such meetings will be held in person at least quarterlyconsents. The Board Observer shall execute be entitled to meet and consult with the senior executive management team of the Company on a confidentiality agreement quarterly basis to discuss the quarterly and annual business plans of the Company and the Company’s subsidiaries and to review the progress of the Company and the Company’s subsidiaries in form and substance reasonably satisfactory achieving their plans. In addition, upon request to the Company prior to participating in a meeting chief executive officer of the Company, the members of the senior executive management team of the Company shall make themselves available during normal business hours to meet with the Board or receiving related materials and information. Notwithstanding the foregoingObserver on an interim basis, (1) as the Board Observer may reasonably request from time to time, and as would not attend any portion of a meeting unreasonably interfere with the duties of the Board during which a transaction or agreement with or for the benefit members of the Backstop Party senior executive management team of the Company. Notwithstanding any other provision of this Section 3 to the contrary, the Company or any affiliate is being considered by the Board; (2) the Board shall have the right to require keep confidential from the Board Observer to leave any meeting if for such period of time as the Company or the Board needs deems reasonable any information and copies of written materials the Company is required by law, rule, regulation or agreement with a third party to deliberate independently; keep confidential. The Board Observer shall hold in confidence and (3) trust and not use or disclose any confidential information provided to or learned by him or her in connection with the Board may exclude Observer’s rights hereunder for any purpose other than the observation and participation rights contemplated hereby, unless otherwise required by law. As a condition of the exercise of his or her rights under this Section 3, the Board Observer from any meeting shall enter into such further agreements or portion thereof if access to information discussed or presented or attendance at such meeting would adversely affect the attorney-client privilege between undertakings with the Company and its counselto maintain the confidentiality of information provided to them in connection with the exercise of such rights as the Company may reasonably request. Attendance of a The Shareholder will cause each Board Observer at a meeting appointed by it to agree to abide by and be subject to the obligations imposed upon members of the Board shall not be required pursuant to establish a quorum for such meeting. b) The Backstop Party may, at any time, terminate its right under this Section 9 by providing written notice Article 12 of such termination to the Company. The rights provided by this ’s bylaws (or any successor provision thereto) and Section 9 may not be assigned by 3 of the Backstop PartyCompany’s Code of Business Conduct and Ethics (or any successor provision thereto).

Board Observer. If the Aggregate Ownership of JBH and the JBH Subsidiaries falls below 10%, then, until the later of the date upon which (a) For purposes the Aggregate Ownership of this Section 9, the term “Company” refers to each of Community Shores JBH and the Bank. Commencing upon the closing of the Rights Offering, JBH Subsidiaries falls below 5% or (b) that certain Transition Services Agreement between JBH and the Company will permit dated as of [_________], 2008 (as amended from time to time) is terminated or expires according to its terms, JBH shall have the Backstop Party right to designate, at its sole discretion, one (1) individual to attend all Board of Directors meetings of the Company as an observer appoint a representative (the “Board ObserverRepresentative”) to attend each meeting of the Board as a non-voting observer, whether such meeting is conducted in person or by teleconference. The Board Representative shall have the right to present matters for consideration by the periods specified in Subsection (a)(i) belowBoard and to speak on matters presented by others. For Subject to the avoidance confidentiality provisions of doubtthis Section 3, the Company shall cause the Board Observer shall not have voting rights or fiduciary obligations Representative to be provided with all communications and materials that are provided by the Company or its shareholders, but shall be bound by the same confidentiality and i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as consultants to the members of the Board. i. The initial Board Observer designated by generally, at the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until the Company’s annual meeting of the Board in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 same time and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual to serve as a Board Observer, but the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board Observer. ii. The Company will provide the Board Observer with actual notice of all regular and special meetings of the Company’s Board of Directors in the same manner as that such communications and materials are provided to directorssuch members, including all notices, board packages, reports, presentations, minutes and consents. The Board Representative shall be entitled to meet and consult with the senior executive management team of the Company on a quarterly basis to discuss the quarterly and annual business plans of the Company and the Company’s subsidiaries and to review the progress of the Company and the Company’s subsidiaries in achieving their plans. In addition, upon request to the chief executive officer of the Company, the members of the senior executive management team of the Company shall make themselves available during normal business hours to meet with the Board Representative on an interim basis, as the Board Representative may reasonably request from time to time, and will provide to such Board Observer a copy as would not unreasonably interfere with the duties of all materials and information distributed at or prior to such meetings or otherwise to the directors members of the senior executive management team of the Company. Such meetings will be held in person at least quarterly. The Board Observer shall execute a confidentiality agreement in form and substance reasonably satisfactory Notwithstanding any other provision of this Section 3 to the contrary, the Company prior to participating in a meeting of the Board or receiving related materials and information. Notwithstanding the foregoing, (1) the Board Observer may not attend any portion of a meeting of the Board during which a transaction or agreement with or for the benefit of the Backstop Party or any affiliate is being considered by the Board; (2) the Board shall have the right to require keep confidential from the Board Observer to leave any meeting if Representative for such period of time as the Company or the Board needs to deliberate independently; deems reasonable any information and (3) the Board may exclude the Board Observer from any meeting or portion thereof if access to information discussed or presented or attendance at such meeting would adversely affect the attorney-client privilege between copies of written materials the Company and its counselis required by law or agreement with a third party to keep confidential. Attendance of As a Board Observer at a meeting condition of the Board shall not be required to establish a quorum for such meeting. b) The Backstop Party may, at any time, terminate its right exercise of their rights under this Section 9 by providing written notice 3, the Board Representative shall enter into such agreements or undertakings with the Company to maintain the confidentiality of information provided to them in connection with the exercise of such termination to rights as the Company. The rights provided by this Section 9 Company may not be assigned by the Backstop Partyreasonably request.

Board Observer. a) For purposes of this Section 9, Following the term “Company” refers to each of Community Shores and the Bank. Commencing upon the closing of the Rights OfferingClosing, the Company will shall invite and permit the Backstop Party to designate, at its sole discretion, one (1) individual to attend all Board of Directors meetings authorized employee of the Company Purchaser or its Affiliate to be designated by the Purchaser and seek the approval of the Board (such approval not to be unreasonably withheld) to designate such representative as an observer to the Board (the “Board Observer”) for the periods specified in Subsection (a)(i) below. For the avoidance of doubt, the Board Observer shall not have voting rights or fiduciary obligations to the Company or its shareholders, but shall be bound by the same confidentiality and i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as the members of the Board. i. The initial Board Observer designated by the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until shall be, subject to the Company’s annual meeting exceptions set forth below, invited to attend all meetings of the Board and in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject connection therewith shall be entitled to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual to serve as a Board Observer, but the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board Observer. ii. The Company will provide the Board Observer with actual notice receive copies of all regular notices, minutes, consents, and special meetings of other materials that the Company’s Board of Directors Company provides to its directors on the same terms and in the same manner as provided to directors, and will provide to such Board Observer a copy of all materials and information distributed at or prior to such meetings or otherwise to the directors other members of the Company. Such meetings will be held in person at least quarterlyBoard (the “Board Documents”). The Observer may participate in discussions of matters brought before the Board (or with the Board’s consent, its committees), but shall in all other respects be a nonvoting observer. The Company shall have the right at its sole discretion to exclude the Observer shall execute a confidentiality agreement in form and substance reasonably satisfactory to the Company prior to participating in a from any portion or all of any meeting of the Board (or receiving related materials and information. Notwithstanding the foregoingany committee), (1) the Board Observer may not attend any or withhold a portion of a meeting of the Board during which Documents, on a transaction case-by-case basis, if required by Law or agreement with or for the benefit of the Backstop Party or any affiliate is being considered by the Board; (2) the Board shall have the right to require the Board Observer to leave any meeting if the Board needs or any executive officer (as defined in Rule 3b-7 under the Exchange Act) of the Company determines that exclusion of the Observer is reasonably necessary (i) to deliberate independently; and (3) the Board may exclude the Board Observer from any meeting or portion thereof if access to information discussed or presented or attendance at such meeting would adversely affect preserve the attorney-client privilege between the Company and its counsel, (ii) to prevent disclosure of trade secrets to the Observer, or (iii) as a result of breach by the Purchaser or any SB LatAm Fund Entities of Section 5.09. Attendance The Company and the Purchaser agree that upon the appointment of any such Observer, the Company and the Purchaser shall negotiate, and shall cause the Observer to enter into, a Board Observer at a meeting confidentiality agreement and any other agreements reasonably deemed necessary by the Company to approve the appointment of the Board Observer. Upon the resignation of any Observer, the Company and the Purchaser shall use their good faith efforts to appoint a replacement representative as Observer in accordance with the procedures set forth above, in each case within 15 calendar days of any such Observer resignation. Purchaser shall maintain the right to designate one Observer pursuant to this Section 5.06 only so long as it, together with its Affiliates, continues to beneficially hold at least 5% of the Company’s outstanding Common Shares (on an as-converted basis and taking into account the full number of Class A Common Shares issuable upon conversion of the Series A Preferred Shares) and any Observer shall thereafter lose all rights set forth above. In addition, the Purchaser shall not be required have a right to establish a quorum for such meeting. b) The Backstop Party may, at any time, terminate its right under an Observer pursuant to this Section 9 by providing written notice 5.06 if the Purchaser or its Affiliate has a representative on the Board of such termination to the Company. The rights provided by this Section 9 may not be assigned by the Backstop Party.

Board Observer. a) For purposes of this Section 9, the term “Company” refers The Purchaser shall be entitled to each of Community Shores and the Bank. Commencing upon the closing of the Rights Offering, the Company will permit the Backstop Party to designate, at its sole discretion, appoint one (1) individual to attend all Board of Directors meetings of the Company as an nonvoting observer (the “Board Observer”) for the periods specified in Subsection (a)(i) below. For the avoidance of doubt, the Board Observer shall not have voting rights or fiduciary obligations to the Company or its shareholders, but shall be bound by the same confidentiality and i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as the members of the Board. i. The initial Board Observer designated by the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until the Company’s annual attend each meeting of the Board in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual to serve as a Board Observer, but the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board Observer. ii. The Company will provide the Board Observer with actual notice of all regular and special meetings of the Company’s Board board of Directors in directors (the same manner as provided to directors, and will provide to such Board Observer a copy of all materials and information distributed at “Board”) or prior to such meetings or otherwise to the directors of the Company. Such meetings will be held in person at least quarterly. The Board Observer shall execute a confidentiality agreement in form and substance reasonably satisfactory to the Company prior to participating in a meeting committee of the Board or receiving related materials and information. Notwithstanding the foregoing, (1) 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 may not attend from access to any portion of materials or any portion of a meeting to the extent such portion of the Board during materials or meeting contains information (i) the disclosure of which a transaction or agreement with or for would, in the benefit opinion of the Backstop Party Company or any affiliate is being considered by the Board; (2) the Board shall have the right to require the Board Observer to leave any meeting if the Board needs to deliberate independently; and (3) the Board may exclude the Board Observer from any meeting or portion thereof if access to information discussed or presented or attendance at such meeting would its counsel, adversely affect the attorney-client privilege between the Company and its counsel, (ii) the Board determines that the Observer has a conflict of interest that is specific to the Observer or (iii) the Board otherwise determines that Observers receipt of such materials or attendance at such meeting would materially and adversely affect the Company. Attendance of a Board Observer Upon reasonable notice and at a scheduled meeting of the Board shall not be required or such other time, if any, as the Board may determine in its sole discretion, Observer may address the Board with respect to establish a quorum for such meeting. b) The Backstop Party may, the Purchaser’s concerns regarding significant business issues facing the Company. Prior to attendance at any timemeeting of the Company’s Board or the receipt of copies of any communications received by the Board members, terminate its right under this Section 9 by providing written notice of such termination the Observer shall enter into a standard Regulation FD Confidentiality Agreement reasonably acceptable to the Company. The rights provided by 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 pursuant to the terms of this Section 9 may not be assigned by 4.3 other than to the Backstop PartyPurchaser’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 Purchaser’s representatives, any such representative shall have entered into a standard Regulation FD Confidentiality Agreement reasonably acceptable to the Company.

Board Observer. (a) For purposes Subject to the terms and conditions of this Section 9Agreement, from and after the Effective Date and until a Termination Event (as defined below) shall have occurred, the term Shareholder shall have the right, effective immediately, to designate one person to be appointed as a board observer (“Company” refers to each of Community Shores and the BankBoard Observer”). Commencing upon the closing of the Rights OfferingThe Shareholder shall exercise these rights, the Company will permit the Backstop Party to designate, at in its sole discretion, one (1) individual from time to attend all Board of Directors meetings of the Company as an observer (the “Board Observer”) for the periods specified in Subsection (a)(i) below. For the avoidance of doubt, the Board Observer shall not have voting rights or fiduciary obligations time by providing written notice to the Company or its shareholders, but shall be bound by the same confidentiality and iCompany. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ obligations as the members of the Board. i. The initial Board Observer designated by the Backstop Party shall be B▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (“Mr. Essex”), who may act as a Board Observer until ▇ is hereby designated by the Company’s annual meeting of the Board in May of 2016. At the 2016 Annual Meeting of the Board, the Backstop Party may designate Mr. Essex, or another individual subject to the prior approval of the Board, which shall not be unreasonably withheld, to continue to act as a Board Observer until the 2017 Annual Meeting of the Board. At the 2017 and 2018 Annual Meetings of the Board, the Backstop Party may designate an individual Shareholder to serve as a Board Observer, but effective as of the Board may, in its sole discretion, elect to withhold the right of such individual, or any individual, to act (or to continue to act) as a Board ObserverEffective Date. ii. The Company will provide the Board Observer with actual notice of all regular and special meetings of the Company’s Board of Directors in the same manner as provided to directors, and will provide to such Board Observer a copy of all materials and information distributed at or prior to such meetings or otherwise to the directors of the Company. Such meetings will be held in person at least quarterly. (b) The Board Observer shall execute a confidentiality agreement in form and substance reasonably satisfactory to the Company prior to participating in a meeting of the Board or receiving related materials and information. Notwithstanding the foregoing, (1) the Board Observer may not attend any portion of a meeting of the Board during which a transaction or agreement with or for the benefit of the Backstop Party or any affiliate is being considered by the Board; (2) the Board shall have the right to require attend and participate in all meetings of the Board in a non-voting capacity, and the Company shall provide such Board Observer copies of all notices, consents, minutes and other materials, financial or otherwise, which the Company provides to the Board, provided, however, that if the Board Observer does not, upon the written request of the Company, before attending any meetings of the Board, execute and deliver to leave any meeting if the Company an agreement to abide by all Company policies applicable to members of the Board needs and a confidentiality agreement reasonably acceptable to deliberate independently; and (3) the Board may exclude Company, the Board Observer may be excluded from access to any material or meeting or portion thereof if access the Board determines in good faith, upon advice of counsel, that such exclusion is reasonably necessary to protect highly confidential proprietary information discussed of the Company or presented confidential proprietary information of third parties that the Company is required to hold in confidence, or attendance for other similar reasons. The Shareholder may revoke the designation of any person as the Board Observer at any time upon written notice to the Company after which the Shareholder shall be entitled to designate a replacement Board Observer. (c) The Board Observer shall serve under the terms of the Board Observer and Indemnification Agreement attached hereto as Exhibit 1 with such meeting would adversely affect the attorney-client privilege between changes as may be agreed upon by the Company and its counsel. Attendance of a the Board Observer. (d) The Company shall pay the reasonable, documented out-of-pocket expenses incurred by the Board Observer at a meeting in connection with his or her services provided to or on behalf of the Board shall not be required to establish a quorum for such meetingCompany, including attending meetings (including committee meetings) or events attended on behalf of the Company at the Company’s request. b(e) The Backstop Party mayCompany shall (i) purchase directors’ and officers’ liability insurance in an amount determined by the Board to be reasonable and customary and (ii) for so long as the Board Observer serves in such capacity, at any time, terminate its right under this Section 9 by providing written notice of maintain such termination coverage with respect to the Company. The rights provided by this Section 9 may not be assigned by the Backstop PartyBoard Observer.