Observation Rights. (a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20. (b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Beyond, Inc.), Term Loan Credit Agreement (Kirkland's, Inc), Term Loan Credit Agreement (Beyond, Inc.)
Observation Rights. Pursuant to the terms of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) From the date hereof until Company's Board of Directors may require that the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunderObservers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (iib) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the date on which neither Beyond nor any outstanding shares of its Affiliates is the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Lender or Agent hereunderBoard meeting, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer Board must provide to the board Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of managers Directors may not exclude one or both of Parent (the “Board” and such observer, the “Board Observer”), and shall cause Observers from meetings or portions of meetings during which the Board Observer will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend meetings of Board meetings, such individuals shall be provided with the Board same meeting notices and any committee of the Board and to receive all information provided to materials as the members of the Company's Board or its committees (of Directors, including but not limited to copies of all proposed and final resolutions, minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted and written consents. Notwithstanding anything to the Board or any of its committees nor contrary herein, the Observers may opt to offer any motions or resolutions terminate their Observation rights effective upon 5 business days written notice to the Board or such committees; Company, following which time the Observers will no longer be provided with meeting notices and (ii) material. Upon electing to terminate their status as Observers, the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined Observers will in no way be considered by the Board) access Corporation to such information be insiders or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise affiliates, unless required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20applicable law.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.
Appears in 3 contracts
Sources: Merger Agreement (Celsius Holdings, Inc.), Merger Agreement (Celsius Holdings, Inc.), Observation Rights and Termination Agreement (Celsius Holdings, Inc.)
Observation Rights. (a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties The Holder shall cause Beyond to have the right be entitled to appoint one Person (1the “Holder Appointee”) individual to attend, as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause each meeting of the Board Observer to of Directors, or any committee thereof, whether such meeting is conducted in person or by telephone. The Holder Appointee shall be entitled to attend meetings receive, with respect to each meeting of the Board and of Directors or any committee thereof: (a)
(i) written notice of each regular meeting at least ten (10) days in advance thereof and (ii) written notice of each special meeting at least two (2) Business Days in advance of such meeting, but, in any case involving any such regular or special meeting, such notice shall be delivered no later than the Board and to receive all information provided to date on which the members of the Board of Directors or the committee, as applicable, are notified of such meeting, and (b) any and all information provided in connection with each such meeting to all other potential attendees of such meeting, in each case at the time and in the same manner as provided to such other attendees. Additionally, the Holder Appointee shall receive copies of all other notices, minutes, consents and other material items that the Company provides to its committees (including minutes of previous directors at the same time and in the same manner as provided to such directors. The Holder Appointee shall receive reimbursement from the Company for any and all reasonable out-of-pocket expenses incurred in connection with attending any and all meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board of Directors or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”)thereof. The Monitor shall have access to the books and records of the Loan Parties, and Holder shall be entitled to discuss financialfill any vacancy caused by the resignation, operational and management decisions with the officers death or removal of a prior Holder Appointee. As of the Loan Partiesdate hereof, the Holder has elected not to appoint a Holder Appointee.
Appears in 2 contracts
Sources: Registration Rights Agreement (Attis Industries Inc.), Securities Purchase Agreement (Attis Industries Inc.)
Observation Rights. (a) From To the date hereof until extent that, at any time after the earlier to occur Closing Date, and during the Applicable Period, a representative of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and Purchaser shall not be a member of the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the Company's board of managers directors, a representative of Parent the Purchaser designated by the Purchaser from time to time in its sole discretion (the “Board” and such observer, the “Board Observer”), and "PURCHASER REPRESENTATIVE") shall cause the Board Observer to be entitled to attend as an observer all meetings of the board of directors of the Company (including, but not limited to, any and all committees thereof and telephonic meetings with respect thereto); provided, however, that the Company's board of directors may require that the Purchaser Representative not attend any particular meeting of the Company's board of directors or committees thereof or be excused from any portions of such meetings that involve matters or business that the Company's board of directors determines in good faith are matters or business that must be considered by the Company's board of directors (or the applicable committee thereof) without the Purchaser Representative being in attendance; provided, however, that the Purchaser Representative shall not be excluded from any two (2) consecutive meetings. Except with respect to matters or business as to which the Company's board of directors has determined that must be considered by the board of directors (or the applicable committee thereof) without the Purchaser Representative being in attendance, the Purchaser Representative shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors (including, without limitation, any and all committees thereof), including, without limitation, copies of all proposed and final resolutions, minutes and written consents. The Company shall, at all times during the Applicable Period during which a Purchaser Director shall not be a member of the Company's board of directors, allow the Purchaser Representative (or such other person designated by the Purchaser Representative from time to time) to be present at the business offices of the Company during regular business hours and the Company further covenants to provide to such Purchaser Representative (and such designee, if any), during regular business hours, upon seventy-two (72) hours notice to the Chief Executive Officer of the Company, access to all of the Company's books, records, files, documentation and other information related to the past, present and/or future operations of the Company and any of its subsidiaries or its parent, if any, that are located at the business offices of the Company or that can be obtained by the Company without unreasonable cost or effort, and that would normally be available to a member of the Company's Board of Directors or audit or other committee of the Board of Directors in the exercise of his responsibility and to receive all information provided to the members fiduciary duties as such. The right of the Board or its committees Purchaser Representative (including minutes of previous and designee, if any) to attend board meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books Company information, including to be present at the Company's offices, is conditioned upon receipt from Purchaser and records such Purchaser Representative (and designee, if any) of a confidentiality agreement containing prohibitions on disclosure of the Loan PartiesCompany's Confidential Information (defined below) and using such Confidential Information to the detriment of the Company and/or its shareholders, and which agreement shall be entitled in form and substance reasonably satisfactory to discuss financial, operational the Company and management decisions with the officers of the Loan PartiesPurchaser.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Summit Brokerage Services Inc / Fl), Stock Purchase Agreement (Summit Brokerage Services Inc / Fl)
Observation Rights. (a) From the date hereof until Until such time as the earlier to occur of (ia) Nortel Networks no longer holds any Loans or Commitments hereunder or (b) the Debt Service Coverage Ratio of the Borrower or its Consolidated Subsidiaries has equaled or exceeded 1.00 to 1.00 (if calculated prior to the Amortization Commencement Date, determined on a pro forma basis as if the Amortization Commencement Date had occurred four fiscal quarters prior to such date on which all outstanding Obligations (other than unasserted contingent indemnification Obligationsof calculation) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any for a period of its Affiliates is a Lender or Agent hereunderfour consecutive fiscal quarters, the Loan Parties Borrower and/or Holdings shall cause Beyond to have give Nortel Networks notice of each meeting of the right to appoint one (1) individual as a non-voting observer Board of Directors of Holdings and each meeting of any committee of the Board of Directors of Holdings not less than ten Business Days prior to the board dates CREDIT AGREEMENT - Page 76 84 of managers of Parent any such meetings and allow a Person designated by Nortel Networks to serve as an observer (the “Board” and "Observer") who may attend all such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board of Directors of Holdings and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes Directors of previous meetings of the Board or such committees); provided, that (i) the Board Holdings. The Observer shall will not be a director, nor entitled to vote on any matter submitted to the Board of Directors of Holdings (or any committee of such board), and will have no rights, duties, liabilities or obligations of a director. The Observer may be excused at the request of a majority of the directors present at any such meetings for discussions involving sensitive information regarding competitors of Nortel Networks or Nortel Networks itself. The Observer may share any information gained from presence at such meetings with the employees, officers, directors, attorneys and advisors of Nortel Networks who have a need to know such information in the performance of their duties (collectively, the "Representatives"), but such information shall otherwise be kept confidential by Nortel Networks and its committees nor to offer any motions or resolutions Representatives to the Board or such committees; and (ii) the Board may withhold same extent that financial information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access with regard to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or Holdings is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid kept confidential in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions accordance with the officers terms of the Loan Partiesthis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Alamosa PCS Holdings Inc)
Observation Rights. (a) From In addition to the date hereof until rights to nominate one or more directors provided in Section 5.6, for such time as the earlier Buyers or their affiliates continue to occur hold at least 10% of (i) the date on which all total issued and outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderCommon Stock, the Loan Parties Company and its Subsidiaries shall cause Beyond extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have the right to appoint one a representative (1) individual as a non-voting observer to the board of managers of Parent (the an “Board” and such observer, the “Board Observer”), ) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall cause the Board Observer to be entitled to attend receive prior written notice of all meetings of the Board and any committee Boards of Directors of the Board Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Board or its committees (including minutes Boards of previous meetings Directors of the Board or such Company and its Subsidiaries and their respective committees); provided. Subject to ordinary and reasonable procedural rules, that (i) the Board Observer shall not be entitled to vote on any matter submitted may participate in a meaningful manner in discussions of matters brought to the Board or any of its committees nor Directors, and shall be permitted to offer any motions or resolutions pose questions and the Board of Directors shall provide complete responses to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lendersquestions posed. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled deemed to be a member of the Board of Directors or any rights other than those committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 6.20.
5.7, and (bB) From provided the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor Observer gives prior written notice to the Loan Parties Company, disclose such material and information in accordance with respect to financialapplicable laws or legal process, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions in any litigation or other proceedings under this Agreement or in accordance with the officers of the Loan Partiesregulatory requirements.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Gendell Jeffrey L Et Al), Securities Purchase Agreement (Miscor Group, Ltd.)
Observation Rights. (a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full For so long as Apollo and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereundercontinue to hold at least $22,500,000 of the Mezzanine Notes, the Loan Parties Apollo shall cause Beyond to have the right to appoint have one (1) individual as a non-voting observer to the board of managers of Parent representative present (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend whether in person or by telephone) at all meetings of the Board and any committee boards of the Board Company and to receive all information provided to the members of the Board or its Subsidiaries (and audit committees (including minutes of previous meetings of the Board or such committeesthereof); provided, provided that (i) the Board Observer such representative shall not be entitled to vote on any matter submitted at such meetings; and provided further that such representative is reasonably acceptable to the Board Company. The Company shall send to such representative all of the notices, information and other materials that are distributed to Directors, and shall provide Apollo with a notice and agenda of each meeting of the boards (and audit committees thereof) of the Company and its Subsidiaries, at the same time as delivered to the Directors. Apollo shall provide notice to the Company of the identity and address of, or any of its committees nor to offer any motions or resolutions change with respect to the Board identity or address of, their representative. Notwithstanding the foregoing, the Company or its Subsidiaries, as applicable, shall be entitled to (a) excuse such committees; representative of Apollo from any portion of a meeting of the boards (or audit committee thereof) which discusses any matters directly relating to Apollo, the Mezzanine Notes or the Mezzanine Notes Indenture and (iib) the Board may withhold information or materials from the Board Observer and exclude Apollo representative delivered to the Board Observer from any boards (or audit committees thereof) prior to a meeting of the applicable board (or portion thereof (x) audit committee thereof), in each case if (the Company, or its Subsidiaries, as reasonably determined applicable, believes there is a reasonable likelihood that the receipt of such information by the Board) access to such information or materials or attendance at such meeting Apollo representative would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in create a conflict of interest for the Apollo representative or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, affect the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense attorney/client privilege of the Loan PartiesCompany and its legal advisors or its Subsidiaries or their legal advisors, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”)applicable. The Monitor Company shall have access reimburse or shall cause its Subsidiaries to reimburse the books Apollo representative for all reasonable travel and records of other out-of-pocket expenses incurred by the Loan Parties, and shall be entitled to discuss financial, operational and management decisions Apollo representative in connection with the officers of the Loan Partiesattending board or committee meetings.
Appears in 2 contracts
Sources: Stockholders Agreement (Associated Materials Inc), Stockholders Agreement (AMH Holdings, Inc.)
Observation Rights. The Companies shall invite (aby written notice given to Purchaser) From two (2) representatives of Purchaser to attend in a non-voting observer capacity all meetings of the date hereof Board of Directors of the Companies and committees thereof including all executive sessions of the Boards and committees, and all meetings of the stockholders of the Companies, provided, however, that no such representatives shall attend meetings of independent directors of the Companies only, so long as exclusion from such meetings is required by the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 as evidenced by a legal opinion delivered by outside legal counsel chosen by the Parent and reasonably agreed to by the Purchaser (with the cost of such legal opinion being borne by the Parent), or portions of the meetings of the Board of Directors of the Parent where the Parent discusses refinancing options and other matters in each case related to Purchaser. Notice of such meetings shall be given to Purchaser in the same manner and at the same time as to the directors, committee members and/or stockholders of the Companies, as the case may be (which in any event shall not be less then forty-eight (48) hours prior to such meeting unless otherwise agreed to by Purchaser in writing). Purchaser shall be provided with copies of all information (including a meeting agenda, if one is prepared) that is provided to such directors, committee members and/or stockholders (whether prior to, at, or subsequent to any such meetings), at the same time as such materials are provided to such directors, committee members and/or stockholders, and (c) copies of the minutes of all meetings of such directors, committee members and/or stockholders (other than meetings of the Board of Directors of the Companies and/or Parent or portions thereof which the Purchaser’s representatives are prohibited from attending pursuant to the first sentence of this Section 2.1), concurrently with the distribution of such minutes to such directors, committee members and/or stockholders, but in no event later than forty-five (45) days after each such meeting. Each of the Companies shall ensure that no board, committee or other governing body of it meets in any informal capacity without a representative of Purchaser in observance. Purchaser’s rights under this Section 2.1 shall be effective until the earlier to occur later of (i) the date on which payment by the Parent of all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, outstanding obligations under the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; Notes and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter rights under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From 2.1 are no longer necessary to qualify under the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense “Venture Capital Operating Company” exemption of the Loan PartiesEmployee Retirement Income Security Act of 1934, Beyond shall have to be determined in the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities sole discretion of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan PartiesPurchaser.
Appears in 2 contracts
Sources: Investor Rights Agreement (Butler International Inc /Md/), Investor Rights Agreement (Levine Leichtman Capital Partners Iii Lp)
Observation Rights. So long as any of the Obligations remain outstanding:
(a) From the date hereof until Administrative Agent, acting at the earlier direction of the Required Lenders, shall have the right to, or to occur appoint one representative (which may be a representative of FTI Consulting or such other firm selected by the Administrative Agent) who shall, (i) receive written notice of all meetings (both regular and special) of the date on which all outstanding Obligations boards of directors (other than unasserted contingent indemnification Obligationsor similar body) have been paid of each Loan Party and their respective Subsidiaries and each committee of any such board at the same time and in full and the Commitments are irrevocably terminated hereundersame manner as notice is given to the members of any such board and/or committee, or (ii) be entitled to attend (or, in the date on case of telephone meetings, join) all such meetings, (iii) receive all notices, information and reports which neither Beyond nor are generally furnished by the Loan Parties or any Subsidiary to all of its Affiliates the members of any such board and/or committee (in their capacity as a member of such board or committee) at the same time and in the same manner as the same is furnished to such members in connection with any such meetings, and (iv) be entitled to participate in all discussions conducted at such meetings and receive copies of the minutes of all such meetings at the same time and in the same manner as all of the other members of the board;
(b) if any action is proposed to be taken by any such board and/or committee by written consent in lieu of a Lender or Agent hereundermeeting, the Loan Parties will give written notice thereof to each such representative, which notice shall cause Beyond to have describe in reasonable detail the right to appoint one (1) individual as a non-voting observer to the board nature and substance of managers of Parent (the “Board” and such observer, the “Board Observer”), proposed action and shall cause be delivered at the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided same time as notice is given to the members of the Board or its committees any such board and/or committee;
(including minutes of previous meetings of the Board or such committees); provided, that (ic) the Board Observer Loan Parties will furnish each such representative with a copy of each such written consent not later than five days after it has been signed by its last signatory;
(d) each such representative shall not constitute a member of any such board and/or committee and shall not be entitled to vote on any matters presented at meetings of any such board and/or committee or to consent to any matter submitted as to which the Board consent of any such board and/or committee shall have been requested;
(e) the board of directors (or similar body) of the Company shall meet not less frequently than quarterly during each Fiscal Year at least one of which meetings must be in person; each designated representative electing not to attend any meeting in person may in any event be permitted to participate in such meeting by telephone as if such designated representative were present;
(f) promptly upon receipt of an invoice therefor, the Company shall reimburse each such designated representative (or the employers of such representatives) for the reasonable out-of-pocket costs and expenses of such representative in attending any meeting (other than a telephonic meeting);
(g) if an issue is to be discussed or otherwise arises at any meeting of the board of directors of the Loan Parties or their Subsidiaries or any committee thereof which, in the reasonable judgment of its committees nor such board of directors, cannot be discussed in the presence of such representative in order to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in avoid a conflict of interest on the part of such representative or is otherwise required to avoid preserve an attorney-client privilege, then such issue may be discussed without such representative being present and may be deleted from any disclosure that is restricted by materials being distributed in connection with any agreement with another Person or (y) (A) when any Agentmeeting at which such issues are to be discussed, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer so long as (x) shall not constitute a manager and/or member such representative is given notice of a Board committee the occurrence of such meeting and the deletion of such materials and (y) shall not be entitled notice of the occurrence of such meeting and the deletion of such materials is given to any rights other than those provided by this Section 6.20the Administrative Agent.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense 12. Section 11.16 of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve Agreement is hereby amended and restated in its entirety as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.follows:
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Observation Rights. (a) From For so long as RedBird and its affiliates “Beneficially Own” (as defined by Rule 13d-3 promulgated under the date hereof Securities and Exchange Act of 1934, as amended) at least 5.0% or more of the outstanding shares of common stock of the Company in the aggregate or until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid this Agreement is terminated in full and the Commitments are irrevocably terminated hereunderaccordance with its terms, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties RedBird shall cause Beyond to have the right to appoint designate one (1) individual as a non-voting board observer (the “Observer”). The Observer shall have the right to (i) attend all meetings of the board of managers directors of Parent the Company (the “Board” ”) and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings Audit Committee of the Board (the “Audit Committee”) in a non-voting, observer capacity and any committee (ii) receive copies of all notices, minutes, consents and other materials that the Company provides to the Board and to receive all information the Audit Committee in the same manner as such materials are provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees)Audit Committee, as applicable; provided, that that, (ix) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board, and the Observer’s presence or absence at any meeting of the Board or such committees; will not be relevant for purposes of determining whether there is a quorum, and (iiy) the Board Company may withhold information or materials from the Board Observer and exclude the Board Observer from any executive sessions and/or all or any portion of any meeting or portion thereof discussion of the Board and the Audit Committee, in each case of this clause (x) y), if (as reasonably determined by the Board) Company determines in good faith that access to such information or and/or materials or attendance at such meeting or portion thereof would be reasonably likely to (A) result in the waiver of attorney-client (or other similar) privilege, (B) adversely affect the attorney-client Company under applicable regulations or work product privilege between the Parent and its counsel laws or be in contravention of any agreement or arrangement with any governmental authority, or (BC) result in a an actual or potential conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agentbetween the Company, any Lenderon the one hand, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationshipand RedBird, contractual or otherwise, with Beyond or any of its Affiliates, any Agent affiliates or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its AffiliatesObserver, any Agent or on the Lendersother hand, as determined by the Company in good faith. For the avoidance of doubt, a conflict of interest shall be presumed to exist where the subject matter relates to a transaction, proceeding or other matter in which RedBird or any of its affiliates are or may be interested parties. The Company shall provide virtual or telephonic access to any meeting of the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20the Audit Committee that is held virtually or telephonically, as applicable, for the Observer.
(b) From The initial Observer shall be ▇▇▇▇▇▇ ▇▇▇▇▇. RedBird may, at its discretion, designate an alternate person to act as Observer, including, but not limited to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the date hereof until “Approved Alternates”); provided, that, except in the earlier case of the Approved Alternates, the Board may reasonably object to occur any such proposed alternate designee within ten (10) business days following receipt of notice (iwhich may be delivered via email) the date on of such proposed alternate designation, in which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full case RedBird and the Commitments are irrevocably terminated hereunderCompany shall cooperate in good faith to find a mutually agreeable alternate designee.
(c) Without limiting any other provision of this Agreement, the Observer shall be subject to the same obligations as the non-employee director members of the Board with respect to confidentiality, conflicts of interest, distribution of information about the Company, and compliance with the Company’s securities trading policies. The Observer shall provide, prior to attending any meetings or (ii) receiving any information or materials, such reasonable assurances to such effect as may be requested by the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderCompany. Such assurances may, at the reasonable expense discretion of the Loan PartiesCompany, Beyond shall have include requesting the right Observer to appoint one (1) individual execute an agreement to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Partiesthat effect.
Appears in 1 contract
Observation Rights. (a) From the date hereof hereofClosing Date until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
. (b) From the date hereof hereofClosing Date until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.management
Appears in 1 contract
Sources: Term Loan Credit Agreement (Bed Bath & Beyond, Inc.)
Observation Rights. Prior to the Maturity Date (a) From and thereafter to the date hereof until extent that the earlier Lender shall not be entitled to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full designate directors pursuant to a written agreement between Harvard and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderLender), the Loan Parties Lender shall cause Beyond to have the right (effective upon the Closing Date) to appoint designate by written notice to Harvard one employee or agent of the Lender, who will receive reasonable notice of, and be entitled to attend, all meetings of the Board of Directors of Harvard (1the "Board of Directors") individual as a nonvoting observer (the "Observer"). Harvard or the applicable members of the Board of Directors will give the Observer oral or written notice of each meeting of the Board of Directors (whether annual or special) at the same time and in the same manner as oral or written notice is given to the applicable members of the Board of Directors (which notice may be waived by the Observer). Notwithstanding the foregoing, if the Observer attends (or, in the case of a telephonic meeting, listens by telephone to) any such meeting of the Board of Directors, then the Observer shall be deemed to have had proper notice of such meeting. Notwithstanding anything contained herein to the contrary, the failure of the Observer to be given notice of a meeting of the Board of Directors pursuant to the immediately preceding two sentences or to attend such meeting shall not in any way affect the authority of the Board of Directors to have or to adopt resolutions at such meeting or the legitimacy of any actions taken by the Board of Directors at such meeting. Subject to the foregoing, Harvard will permit the Observer to attend (or, in the case of a telephonic meeting, to listen by telephone to) each meeting of the Board of Directors as a non-voting observer to observer. Harvard shall provide the board Observer all written materials and other information (including copies of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided meeting minutes) given to the members of the Board or its committees (including minutes of previous meetings Directors in connection with any such meeting at the same time as such information is delivered to the members of the Board or such committees); providedof Directors and, that if the Observer does not attend (ior, in the case of a telephonic meeting, does not listen by telephone to) a meeting of the Board of Directors, Harvard shall, promptly following such meeting of the Board of Directors, provide the written minutes or an oral summary of the meeting from the Secretary of Harvard to the Observer. Prior to attending or listening to any meeting of the Board of Directors or obtaining any documents or summaries of such meetings, the Observer shall not agree in writing to be entitled bound by the same duties of confidentiality, good faith and loyalty as if such Observer were a director of Harvard. If Harvard wishes to vote on take any matter submitted action by written consent of the Board of Directors in lieu of a meeting, then Harvard shall circulate such written consent to the Board or any of its committees nor to offer any motions or resolutions to Observer at the Board or same time it circulates such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined instrument for signature by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Partiesdirectors, and shall be entitled give prompt written notice of any action taken pursuant thereto to discuss financial, operational and management decisions with the officers of the Loan PartiesObserver.
Appears in 1 contract
Observation Rights. (a) From the date hereof until the earlier 1.1 Masimo shall be entitled to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond specify one individual to have the right to appoint one (1) individual serve as a non-voting observer to (“Observer”) at all meetings of the board Company’s Board of managers of Parent Directors (the “Board”) and the Board of Directors (or similar body) of any subsidiary of the Company (each, a “Subsidiary Board” and such observerand, together with the Board, the “Board ObserverBoards”), and shall cause the Board Observer to be entitled to attend meetings all committees of the Board and or any Subsidiary Board, including, without limitation, any ad hoc committee of the Board or any Subsidiary Board (collectively, “Committees”). The Observer may fully participate in all discussions of matters brought to the Boards or any Committee. Masimo shall have the sole authority to replace its Observer at any time. The Company shall provide Masimo with copies of all notices, minutes, consents and other materials that the Company provides to its directors in the same manner that the directors receive all information such materials, except that, the Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof if the Company determines, upon the advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege or to protect highly confidential and proprietary information. Notwithstanding the foregoing, the Board and the officers of the Company shall not be required to allow M▇▇▇▇▇ to participate with respect to communications involving day-to-day business activities and immaterial operational decisions, in each case that are not presented to the Board for approval.
1.2 Except as disclosure shall be required by law or disclosures to the Observer’s Affiliates, officers, directors, agents, employees, attorneys and financial advisers, each of whom are bound by confidentiality obligations, the Observer agrees to hold in confidence and trust and not use or disclose any Confidential Information (as defined below) provided to or learned by the members Observer in connection with the Observer’s rights under this Agreement during the time the Observer has observation rights. For purposes of this Agreement: (a) “Confidential Information” shall include all confidential and proprietary information of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, Company. Confidential Information shall not include information that (i) prior to or after the Board Observer shall time of disclosure becomes part of the public knowledge, (ii) is received from a third party that is not be entitled to vote on any matter submitted to the Board bound by confidentiality restrictions, (iii) is independently developed by M▇▇▇▇▇ or any of its committees nor Masimo’s Affiliates without the use of Confidential Information, (iv) is pre-approved for release by the Company, or (v) is required to offer be disclosed pursuant to any motions applicable law, regulation, order or resolutions other similar requirement of any governmental, regulatory or supervisory authority; (b) an “Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the Board management and policies of a Person whether through the ownership of voting securities, contract or such committeesotherwise; and (iic) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent“Person” means an individual, any Lendera partnership, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationshipa corporation, contractual or otherwisea limited liability company, with Beyond an association, a joint stock company, a trust, a joint venture, an unincorporated organization or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20entity.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.
Appears in 1 contract
Sources: Investment Agreement (Neuraxis, INC)
Observation Rights. The Company agrees to (i) give the holders of the Preferred Stock and Registrable Securities at least seven business days prior written notice of each meeting of the Board of Directors of the Company (a "Board Meeting"), (ii) permit one representative designated by the holder or holders of at least 66-2/3% of the Preferred Stock and Registrable Securities then outstanding to serve as an observer at each Board Meeting, and (iii) deliver to the holders of the Preferred Stock and Registrable Securities copies of (a) From all reports and other materials delivered to the date hereof until Board of Directors of the earlier Company or any Subsidiary in connection with each Board Meeting, or submitted to occur such Board of Directors of the Company or any Subsidiary in connection with any proposed action to be taken by written consent of such Board of Directors, and (ib) the date on which all outstanding Obligations minutes of each Board Meeting (other than unasserted contingent indemnification Obligations) and any resolutions that such Board of Directors passed pursuant to such written consent in lieu of a Board Meeting), certified as true and correct by the Secretary or Assistant Secretary of the Company or any Subsidiary, as the case may be, as soon as the same are available and in any event within 30 days after each such Board Meeting or within 10 days after the adoption of any resolution pursuant to such written consent; provided that if the minutes of any such Board Meeting have not been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderapproved within such 30 day period, the Loan Parties Company shall cause Beyond furnish drafts of such minutes in the form expected to have be approved by the right to appoint one (1) individual as a nonBoard of Directors. Upon the request of the holders of 66-voting observer to 2/3% of the board of managers of Parent (the “Board” Preferred Stock and such observerRegistrable Securities then outstanding, the “Board Observer”), and shall cause holders may receive notice of the Board Observer to be entitled to attend meetings of the Board and any committee of Directors of the Board and to receive all information provided to the members Subsidiaries of the Company and designate an observer to attend such meetings in the same manner as is provided for Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that Meetings in clauses (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) of the immediately preceding sentence. So long as the Company shall be in default in the performance or observance of the terms and conditions of this Agreement, the Rights Agreement or the Statement of Designation, all costs associated with the observation of any Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined Meeting pursuant to this Section 5.5 shall be borne by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20Company.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Eagle Pacific Industries Inc/Mn)
Observation Rights. (a) From To the date hereof until the earlier to occur of extent that (i) an employee of LLR Partners, Inc. is not a member of the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full Board of Directors and the Commitments are irrevocably terminated hereunder, or (ii) LLR owns Equity Securities representing more than five percent (5%) of the date total then outstanding Equity Securities on which neither Beyond nor a fully diluted basis (excluding, for purposes of calculating LLR’s ownership percentage under this Section 3.5, any issuances of its Affiliates is a Lender or Agent hereunderEquity Securities by the Company after the Effective Date), the Loan Parties LLR shall cause Beyond to have the right to appoint designate one (1) individual to attend all meetings of the Board of Directors as a non-voting observer to the board of managers of Parent (the an “Board” and such observer, the “Board Observer”), and ; provided that such non-voting observer shall cause not have the right to participate in any discussion conducted during a meeting of the Board of Directors unless such non-voting observer is explicitly recognized by the Chairman of the Board of Directors. The Observer to shall be entitled invited (in the same manner and at the same time as the member of the Board of Directors) to attend all meetings of the Board and of Directors or any committee subsidiary of the Company (including telephonic or other electronic meetings to the extent that members of the Board of Directors are attending such meetings in such manner) and shall receive (in advance, to the extent members of Board of Directors receive such materials in advance) copies of all information provided notices, minutes, consents, and other material that the Company provides to each of the members of the Board of Directors in connection with any meeting or its committees (including minutes consent or otherwise by reason of previous meetings of the Board or such committees)their membership; provided, however, that (i) each Observer shall hold in confidence and trust all information provided to, or obtained by, them. Notwithstanding the foregoing, the Board Observer of Directors shall have the right, in its sole discretion, to meet in confidential sessions and to not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) provide access to such sessions or the information discussed in such sessions to any or materials or attendance at all Observers, as applicable, if the Board of Directors shall determine that such meeting would confidential session is (Aa) adversely affect the necessary to preserve an attorney-client or work product privilege between privilege, (b) in the Parent best interest of the Company and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agentwhere such Observer, any Lender, the Loan Documents or the Obligations are entity it represents, has an interest in the subject matter under discussion or discussion, (Bc) when such board materials or discussion relate directly necessary to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or discharge the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunderdirectors’ fiduciary duties, or (iid) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Partiesotherwise advised by counsel.
Appears in 1 contract
Observation Rights. (a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated So long as Initial Lender remains a Lender hereunder, or (ii) and subject to the date on which neither Beyond nor any of its Affiliates is a Initial Lender’s obligations with respect to confidentiality pursuant to Section 8.18, Borrower shall grant the Initial Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual observer who shall, other than with respect to matters concerning the Credit Documents or the Loan, be entitled (a) to receive contemporaneously the same notice and other materials in respect of all meetings (both regular and special) or written consents of the Board of Directors and each committee thereof (excluding any audit or compensation committee thereof) as a are furnished to members of said Board of Directors or such committee, together with an agenda for any such meetings (except that in the case of non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend regularly scheduled meetings of the Board and any executive committee of the Board and of Directors, such materials need only be furnished to receive all information provided such observer reasonably promptly after they are furnished to the members of the Board or its committees executive committee), (including minutes of previous b) to attend all meetings (and review all written consents prior to the execution thereof) of the Board of Directors and such committees thereof and (c) to observe all discussions conducted at meetings (or with respect to actions to be taken by written consent) of the Board of Directors and such committees)committees thereof, excluding non-regularly scheduled meetings and actions of the executive committee of the Board of Directors; provided, that (i) however, such observers shall not constitute a member of the Board Observer of Directors or any committee thereof and shall not be entitled to vote on any matter submitted matters presented to the said Board of Directors or any of its committees nor to offer any motions or resolutions to the Board or such committees; committee thereof. The reasonable travel and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorneyout-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted of-pocket expenses incurred by any agreement with another Person or (y) (A) when such observer in attending any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and meetings shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Partiesreimbursed by Borrower.
Appears in 1 contract
Observation Rights. Two representatives appointed by the Requisite Preferred Holders (a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full each such representative, an "Observer", and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereundertogether, the Loan Parties shall cause Beyond to have the right to appoint one (1"Observers") individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers serve as observers at all meetings of the Loan PartiesBoards of Directors of the Company and each Subsidiary and all committees thereof. Such right shall from time to time be exercisable by delivery to the Company of written notice from the Requisite Preferred Holders specifying the names of the Observers. Such right of the Requisite Preferred Holders to appoint the Observers shall expire on the date more than 75% of the shares of Series A Preferred Stock purchased on the Closing Date have been converted pursuant to the Certificate of Designation into Common Stock.
(A) Each of the Company and its Subsidiaries will give each Observer reasonable prior notice (it being agreed that the same prior notice given to the Board of Directors of the Company and its Subsidiaries shall be deemed reasonable prior notice) in any manner permitted in the Company's or each Subsidiary's By-laws for notices to directors of the time and place of any proposed meeting of each such Board of Directors, such notice in all cases to include true and complete copies of all documents furnished to any director in connection with such meeting. Each Observer will be entitled to be present in person as an observer at any such meeting or, if a meeting is held by telephone conference, to participate therein for the purpose of listening thereto.
(B) Each of the Company and its Subsidiaries will deliver to each Observer copies of all papers which may be distributed from time to time to the directors of the Company or each Subsidiary at such time as such papers are so distributed to them, including copies of any written consent. In addition, from time to time upon the request of each Observer, the Company or each Subsidiary will furnish to such Observer such information regarding the business, affairs, prospects and financial condition of the Company or each Subsidiary as such Observer may reasonably request.
(C) Each of the Company and its Subsidiaries shall reimburse the Observers for all travel and related expenses incurred by the Observers in connection with attending such meetings and monitoring the investment of the Series A Preferred Holders in the Series A Preferred Stock.
(D) Each Observer shall hold in confidence all nonpublic information of the Company provided or made available to such Observer pursuant to this Section 5.3(c) until such time as such information has become publicly available other than as a consequence of any breach by such Observer or any Investor of its confidentiality obligations hereunder (provided that such information may be disclosed to any other Persons who are bound by this provision) and shall not (1) trade or otherwise directly or indirectly transfer any Securities of the Company in violation of the Securities Act or Exchange Act or (2) use such information for any purpose other than exercise of its rights as a holder of Securities and its rights under this Agreement and the other Equity Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Exchange Applications Inc)
Observation Rights. Each of Mitsui & Co. Venture Partners II, L.P. (a“Mitsui”) From the date hereof until the earlier to occur of and Easton Capital Partners, L.P. (i“Easton”) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board receive notice of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend all meetings of the Board of Directors, and each of Mitsui and Easton shall have the right to attend up to 50% of such meetings in any committee calendar year (or designate its representative to attend such meeting on its behalf) as a nonvoting observer and to comment for the record at any such meeting, provided that Mitsui and Easton (or their designated representatives) shall coordinate their schedules such that they (or their designated representatives) are not in attendance at the same meeting. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Development Corporation shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to receive comment for the record at such meeting. Subject to the fulfillment of the obligations contained in Section 5.1(a), effective as of January 1, 2008, Intersouth (as defined below) shall have the right to designate a representative to attend all information meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at any such meeting. Each observer so appointed as provided above shall sign a confidentiality agreement reasonably acceptable to the Board of Directors of the Company prior to his or her first attendance to his or her first meeting of the Board of Directors. The Company shall provide each such observer attending a meeting of the Board of Directors the materials provided to the Board of Directors with respect to such meeting at the time such materials as provided to the members of the Board or its committees (including minutes of previous meetings Directors. Notwithstanding anything contained herein to the contrary, no observer shall be permitted to attend any meeting of any committee of the Board or of Directors without the consent of a majority of the members of such committees); providedcommittee. The Board of Directors, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to members of any Loan Party’s relationshipcommittee thereof, contractual or otherwiseas applicable, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual prevent access by any or all observers to serve as an advisor to the Loan Parties with respect to financial, operational and management activities any meeting of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records Board of Directors, or committee thereof, respectively, or any portion thereof, if a majority of the Loan Partiesdirectors present at such meeting deem, and shall be entitled in their sole discretion, such action necessary to discuss financial, operational and management decisions protect the confidential information of the Company or in order to comply with the officers provisions of the Loan Partiesthis Section 4.1(d).
Appears in 1 contract
Observation Rights. (a) From The board of directors of the date hereof until Borrower (the earlier to occur "Board") shall hold a general meeting (which may be held by conference call) or propose adoption of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any resolutions by written consent of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers directors at least quarterly for the purpose of Parent discussing the business and operations of the Borrower and its Subsidiaries. The Borrower shall notify Allied Capital or another representative of the Holders (the “Board” "Representative") in writing of the date and such observer, the “Board Observer”), and shall cause time for each general or special meeting of the Board Observer or any executive committee thereof or of the adoption of any resolutions by written consent (describing in reasonable detail the nature and substance of such action) at least one week prior to any general meeting for which notice is not required to be entitled provided and at the time notice is provided to the directors of the Borrower of any other general meeting or any special meeting and concurrently deliver to the Representative any materials delivered to directors of the Borrower, including a draft of any resolutions proposed to be adopted by written consent. The Representative shall be free during such one week period to contact the directors of the Borrower and discuss the pending actions to be taken.
(b) The Borrower shall permit one authorized representative of Allied Capital and its successors (the "Board Participant") to attend and participate in all meetings of the Board and any executive committee thereof, whether in person, by telephone or otherwise, and shall provide such representative with such notice and other information with respect to such meetings as are delivered to the directors of the Borrower, provided, however, that the Borrower's Chief Executive Officer or President or a majority of the Board and shall have the right to receive exclude Board Participant from all information provided to the members or portions of the Board or its committees (including minutes of previous meetings of the Board or omit to provide Board Participant or the Holder with certain information if the President or Chief Executive or such committees); provided, members of the Board believes in good faith that such exclusion or omission is necessary in order to (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect preserve the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunderprivilege, or (ii) fulfill the date on which neither Beyond nor any Borrower's obligations with respect to confidential or proprietary information of its Affiliates is third parties (provided however, that the Board Participant shall not be so excluded unless all other persons whose receipt of such materials or presence at a Lender or Agent hereundermeeting would result in a violation of such third party confidentiality are also excluded). In addition, at the reasonable expense a majority of the Loan Parties, Beyond Borrower's directors on the Board shall have the right to appoint one (1) individual to serve as an advisor to exclude the Loan Parties with respect to financial, operational and management activities Board Participant from all or portions of meetings of the Loan Parties Board or omit to provide Board Participant or any Holder with certain information if such meeting or information involves information or analysis which would pose a material conflict of interest for Borrower and such Holder. No more than one time per year, the Borrower shall pay such representative's reasonable travel expenses (including, without limitation, the “Monitor”). The Monitor shall have access to the books cost of airfare, meals and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions lodging) in connection with the officers attendance of the Loan Partiessuch meetings.
Appears in 1 contract
Sources: Loan Agreement (Headwaters Inc)
Observation Rights. So long as Platinum or its nominee is a Holder of Series A Preferred Securities:
(a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties Platinum shall cause Beyond to have the right to appoint select, at any time and from time to time, one (1) individual as a non-voting observer to the board of managers of Parent representative (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled "Representative") to attend meetings and observe each meeting of the Board of Directors and any committee other strategic planning or similar type meeting of the Board of Directors or trade shows or other similar events relating to the business of the Corporation and the Corporation shall pay or cause to receive be paid on behalf of the Corporation the reasonable out-of-pocket travel expenses incurred by such Representative in connection with his or her attendance at such meetings or events;
(b) The Corporation shall give Platinum (i) at least 15 days' advance notice of each regular meeting of the Board of Directors and such advance notice as is reasonable under the circumstances to enable the Representative to attend each special or emergency meeting of the Board of Directors, (ii) on or prior to the date of each meeting of the Board of Directors, all information provided given to the directors of the Corporation at or in connection with such meeting, and (iii) as soon as available but in any event not later than 45 days after each meeting of the Board of Directors, copies of the minutes of such meeting. In the event that the Board of Directors shall act by unanimous written consent in lieu of a meeting, the Corporation shall give Platinum and the Representative a copy of such written consent at least five business days prior to the earlier of the adoption or effective date thereof, together with all information given to the directors of the Corporation in connection with such action; provided, however, that in the event immediate action is required to address an emergency situation, the Corporation shall be in compliance with this sentence if the Corporation shall send Platinum and the Representative a copy of such written consent and information by telecopier at the same time as such consent and information is sent to the members of the Board or of Directors for their review and signature.
(c) The Corporation shall comply with all provisions of its committees (including minutes of previous by-laws relating to meetings of the Board or such committees); providedof Directors, that (i) the Board Observer shall not be entitled including, without limitation, those relating to vote on any matter submitted notice and to the Board or any time and date of its committees nor to offer any motions or resolutions to the Board or such committeesmeetings and action by written consent; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.and
(bd) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond The Representative shall have the right (but not the obligation) to appoint one (1) individual consult with and advise the management of the Corporation at any time or from time to serve as an advisor time, by telephone or in person, on such matters relating to the Loan Parties with respect to financialoperation of the Corporation as the Representative shall deem appropriate (including, operational without limitation, matters regarding capital expenditures, acquisitions and management activities of the Loan Parties (the “Monitor”compensation). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.
Appears in 1 contract
Observation Rights. (a) From In addition to the date hereof until rights to nominate two directors provided in Section 5.5, for such time as the earlier Buyers or their affiliates continue to occur hold at least 10% of (i) the date on which all total issued and outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderCommon Stock, the Loan Parties Company and its Subsidiaries shall cause Beyond extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have the right to appoint one a representative (1) individual as a non-voting observer to the board of managers of Parent (the an “Board” and such observer, the “Board Observer”), ) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall cause the Board Observer to be entitled to attend receive prior written notice of all meetings of the Board and any committee Boards of Directors of the Board Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Board or its committees (including minutes Boards of previous meetings Directors of the Board or such Company and its Subsidiaries and their respective committees); provided. Subject to ordinary and reasonable procedural rules, that (i) the Board Observer shall not be entitled to vote on any matter submitted may participate in a meaningful manner in discussions of matters brought to the Board or any of its committees nor Directors, and shall be permitted to offer any motions or resolutions pose questions and the Board of Directors shall provide complete responses to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lendersquestions posed. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled deemed to be a member of the Board of Directors or any rights other than those committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 6.20.
5.6, and (bB) From provided the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor Observer gives prior written notice to the Loan Parties Company, disclose such material and information in accordance with respect to financialapplicable laws or legal process, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions in any litigation or other proceedings under this Agreement or in accordance with the officers of the Loan Partiesregulatory requirements.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tontine Capital Partners L P)
Observation Rights. Two representatives appointed by the Purchasers (a) From the date hereof until "Current Observers" and collectively with the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderPurchasers' Replacement Observers, the Loan Parties "Observers")) shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend serve as observers at all meetings of the Board and each Subsidiary Board, and any committee committees thereof. Such right shall from time to time be exercisable by delivery to the Company of written notice from the Purchasers specifying the names of the Current Observers. Each Observer shall have all of the rights of a member of the Board and each Subsidiary Board, provided, that no Observer shall have the right to receive vote on matters on which the members of the Board or any Subsidiary Board are entitled to vote. Each of the Company and its Subsidiaries will give each Observer reasonable prior notice (it being agreed that the same prior notice given to the Board and each Subsidiary Board shall be deemed reasonable prior notice) in any manner permitted in the Company's or each Subsidiary's By-laws for notices to directors of the time and place of any proposed meeting of each such Board of Directors, such notice in all information provided cases to include true and complete copies of all documents furnished to any director in connection with such meeting. Each Observer will be entitled to be present in person as an observer at any such meeting or, if a meeting is held by telephone conference, to participate therein. Each of the Company and its Subsidiaries will deliver to each Observer copies of all papers which may be distributed from time to time to the members of the Board and each Subsidiary Board at such time as such papers are so distributed to them, including copies of any written consent. In addition, from time to time upon the request of each Observer, the Company or each Subsidiary will furnish to such Observer such information regarding the business, affairs, prospects and financial condition of the Company or each Subsidiary as such Observer may reasonably request. Each of the Company and its committees Subsidiaries shall pay, or reimburse, the Observers for all travel and related expenses incurred by the Observers in connection with attending such meetings and monitoring the Purchasers' investment in the Convertible Debentures. Each Observer shall hold in confidence all nonpublic information of the Company provided or made available to such Observer pursuant to this Section 6.2(b) until such time as such information has become publicly available other than as a consequence of any breach by such Observer or any Purchaser of its confidentiality obligations hereunder (including minutes provided that such information may be disclosed to any other Persons who are bound by this provision) and shall not (1) trade or otherwise directly or indirectly transfer any Securities of previous meetings the Company in violation of the Securities Act or Exchange Act or (2) use such information for any purpose other than exercise of its rights as a holder of Securities and its rights under this Agreement and the other Financing Documents. The rights of the Purchasers in subsections (a) and (b) above are all of the Purchasers' rights with respect to the appointment of members of the Board or such committees); providedand any Subsidiary Board and Observer rights, that (i) the Board Observer shall and are not be entitled to vote on any matter submitted in addition to the Board or any of its committees nor to offer any motions or resolutions rights provided to the Board or such committees; and (iiPurchasers pursuant to Section 5.3(c) of the Board may withhold information or materials from Securities Purchase Agreement dated as of January 10, 2001, among the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full Purchasers and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan PartiesCompany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Exchange Applications Inc)
Observation Rights. (a) From the date hereof until the earlier to occur of (i) As long as Whack owns at least 250,000 shares of the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated AMCF Common Stock received hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties WHEC shall cause Beyond be entitled to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled AMCF’s Board. In the event such designee appointed by WHEC shall for any reason cease to attend meetings of serve as the Board and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); providedObserver, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond WHEC shall have the right to appoint one (1) individual a replacement thereof; provided however, that in no event shall AMCF or AMCF’s Board have the right to serve as an advisor remove the Observer; provided, further that such subsequent observer shall have been subjected to the Loan Parties with respect same or similar background and diligence check prior to financialexercising any Observer Rights. WHEC shall have the right to designate a different person as the Observer at any time upon notice to AMCF.
(ii) Subject to Section 6.1(c)(v) hereof, operational and management activities the Observer shall have all of the Loan Parties (rights and privileges of a member of AMCF’s Board; provided, that in no event shall the “Monitor”)Observer be deemed to be a member of AMCF’s Board or have the right to vote on any matter under consideration by AMCF’s Board. The Monitor In the event that the Observer exercises the Observation Right pursuant to Section 6.1(c)(v) hereof and the terms of the Observer Agreement, the Observer shall be provided with all notices of meetings, minutes and other materials provided to members of AMCF’s Board no later than one day after the Observer exercises the Observation Right with the provision of such materials to the members of AMCF’s Board. All meetings of AMCF’s Board shall be held in a manner such that the Observer shall be able to participate therein either in person or telephonically. In the event that the Observer is unable to attend a meeting of AMCF’s Board, WHEC shall have access the right to send an alternate in the Observer’s place to attend such meeting.
(iii) AMCF shall reimburse the Observer on a quarterly basis for the reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at AMCF’s Board meetings, all of which expenses shall be subject to pre-approval by AMCF following submission to AMCF of reasonably detailed accounting of any such expenses prior to any reimbursement.
(iv) AMCF shall grant and provide to the books Observer the indemnity as provided under the Board Observer Agreement. In the event that the initial Observer (or any subsequent Observer, as the case may be) is replaced for any reason pursuant to Section 6.1(c)(i), AMCF agrees to enter into a board observer and records indemnity agreement with such replacement Observer that is substantially identical to the Board Observer Agreement entered into as of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions date hereof with the officers initial Observer (or such subsequent Observer, as the case may be).
(v) AMCF shall not disclose any material non-public information to the Observer unless the Observer has consented to receive such information and executed an agreement concerning the confidentiality of such information. Prior to each time when AMCF’s Board transacts business by meetings or by written consents, AMCF shall notify the Loan PartiesObserver if there will be material non-public information concerning the matters brought for consideration by AMCF’s Board and the Observer shall advise AMCF if he/she elects to exercise the Observation Right.
Appears in 1 contract
Sources: Share Exchange Agreement (Andatee China Marine Fuel Services Corp)
Observation Rights. (a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations Any Purchaser that holds at least $4,000,000 in principal amount of New Debentures (other than unasserted contingent indemnification Obligationseach a "Four Million Dollar Holder") have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend appoint 1 representative (the "New Debenture Representative" and collectively with the Aggregate Convertible Debenture Holders' Replacement Observers, the "Observers") who shall be entitled to serve as an observer at all meetings of the Board and each Subsidiary Board, and any committee committees thereof. Such right shall from time to time be exercisable by delivery to the Company of written notice from each Four Million Dollar Holder specifying the name of the applicable New Debenture Representative.
(ii) Each Observer shall have all of the rights of a member of the Board and each Subsidiary Board, provided, that no Observer shall have the right to receive vote on matters on which the members of the Board or any Subsidiary Board are entitled to vote. Each of the Company and its Subsidiaries will give each Observer reasonable prior notice (it being agreed that the same prior notice given to the Board and each Subsidiary Board shall be deemed reasonable prior notice) in any manner permitted in the Company's or each Subsidiary's By-laws for notices to directors of the time and place of any proposed meeting of each such Board of Directors, such notice in all information provided cases to include true and complete copies of all documents furnished to any director in connection with such meeting. Each Observer will be entitled to be present in person as an observer at any such meeting or, if a meeting is held by telephone conference, to participate therein.
(iii) Each of the Company and its Subsidiaries will deliver to each Observer copies of all papers which may be distributed from time to time to the members of the Board and each Subsidiary Board at such time as such papers are so distributed to them, including copies of any written consent. In addition, from time to time upon the request of each Observer, the Company or its committees (including minutes of previous meetings each Subsidiary will furnish to such Observer such information regarding the business, affairs, prospects and financial condition of the Board Company or each Subsidiary as such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20request.
(biv) From Each of the date hereof Company and its Subsidiaries shall pay, or reimburse, the Observers for all travel and related expenses incurred by the Observers in connection with attending such meetings and monitoring the Purchasers' investment in the New Debentures.
(v) Each Observer shall hold in confidence all nonpublic information of the Company provided or made available to such Observer pursuant to this Section 6.2(b) until the earlier to occur of (i) the date on which all outstanding Obligations (such time as such information has become publicly available other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, as a consequence of any breach by such Observer or (ii) the date on which neither Beyond nor any Aggregate Convertible Debenture Holder of its Affiliates is confidentiality obligations hereunder (provided that such information may be disclosed to any other Persons who are bound by this provision and in connection with a Lender Purchaser's compliance with Laws in which case Purchaser will provide the Company with prompt written notice so that it may seek a protective order or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond other appropriate remedy) and shall have the right to appoint one not (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities trade or otherwise directly or indirectly transfer any Securities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records Company in violation of the Loan Parties, Securities Act or Exchange Act or (2) use such information for any purpose other than exercise of its rights as a holder of Securities and shall be entitled to discuss financial, operational its rights under this Agreement and management decisions with the officers of the Loan Partiesother Financing Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Exchange Applications Inc)
Observation Rights. So long as MPM Capital (or any successor ------------------ thereto) ("MPM") (or entities affiliated with MPM) owns shares of Series H Convertible Preferred Stock, MPM shall have the right to designate one observer to attend meetings of the Board of Directors (such designee, an "Observer"). The Observer shall not have the right to vote on any matter presented to the Board of Directors. The Company shall give the Observer written notice of each meeting of the Board of Directors at the same time and in the same manner as the members of the Board of Directors receive notice of such meetings, and the Company shall permit the Observer to attend as an observer all meetings of its Board of Directors. The Observer shall be entitled to receive all written materials and other information given to the directors in connection with such meetings at the same time such materials and information are given to the directors, and the Observer shall keep such materials and information confidential. If the Company proposes to take any action by written consent in lieu of a meeting of its Board of Directors, the Company shall give written notice thereof to the Observer prior to the effective date of such consent. The Company shall provide the Observer all written materials and other information given to the directors in connection with such action by written consent at the same time such materials and information are given to the directors, and the Observer shall keep such materials and information confidential. Notwithstanding the foregoing, the Company reserves the right not to provide information and to exclude the Observer from any meeting or portion thereof if the Company believes, as determined in good faith by its Board of Directors, that delivery of such information or attendance at such meeting by the Observer (a) From would adversely affect the date hereof until attorney-client privilege between the Company and its counsel, (b) would violate any fiduciary obligations of the Board of Directors, or (c) would involve a conflict of interest with regard to the Observer, or if the Observer is a direct competitor of the Company. The rights of MPM pursuant to this Section 5.18 shall terminate on the earlier to occur of (i) twelve months after the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunderconsummation of an Initial Public Offering, or (ii) the date on which neither Beyond nor any acquisition (whether by merger or otherwise) of its Affiliates is a Lender or Agent hereunder, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings substantially all of the Board and any committee stock or assets of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted Company by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint one (1) individual to serve as an advisor to the Loan Parties with respect to financial, operational and management activities of the Loan Parties (the “Monitor”). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions entity unaffiliated with the officers of the Loan PartiesCompany.
Appears in 1 contract
Sources: Series H Convertible Preferred Stock Purchase Agreement (Adolor Corp)
Observation Rights. So long as Platinum or its nominee is a Holder of Series A Preferred Securities:
(a) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, the Loan Parties Platinum shall cause Beyond to have the right to appoint select, at any time and from time to time, one (1) individual as a non-voting observer to the board of managers of Parent representative (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled "Representative") to attend meetings and observe each meeting of the Board of Directors and any committee other strategic planning or similar type meeting of the Board of Directors or trade shows or other similar events relating to the business of the Corporation and the Corporation shall pay or cause to receive be paid on behalf of the Corporation the reasonable out-of-pocket travel expenses incurred by such Representative in connection with his or her attendance at such meetings or events;
(b) The Corporation shall give Platinum (i) at least 15 days' advance notice of each regular meeting of the Board of Directors and such advance notice as is reasonable under the circumstances to enable the Representative to attend each special or emergency meeting of the Board of Directors, (ii) on or prior to the date of each meeting of the Board of Directors, all information provided given to the directors of the Corporation at or in connection with such meeting, and (iii) as soon as available but in any event not later than 45 days after each meeting of the Board of Directors, copies of the minutes of such meeting. In the event that the Board of Directors shall act by unanimous written consent in lieu of a meeting, the Corporation shall give Platinum and the Representative a copy of such written consent at least five business days prior to the earlier of the adoption or effective date thereof, together with all information given to the directors of the Corporation in connection with such action; provided, however, that in the event immediate action is required to address an emergency situation, the Corporation shall be in compliance with this sentence if the Corporation shall send Platinum and the Representative a copy of such written consent and information by telecopier at the same time as such consent and information is sent to the members of the Board or of Directors for their review and signature.
(c) The Corporation shall comply with all provisions of its committees (including minutes of previous by-laws relating to meetings of the Board or such committees); providedof Directors, that (i) the Board Observer shall not be entitled including, without limitation, those relating to vote on any matter submitted notice and to the Board or any time and date of its committees nor to offer any motions or resolutions to the Board or such committeesmeetings and action by written consent; and (iid) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond The Representative shall have the right (but not the obligation) to appoint one (1) individual consult with and advise the management of the Corporation at any time or from time to serve as an advisor time, by telephone or in person, on such matters relating to the Loan Parties with respect to financialoperation of the Corporation as the Representative shall deem appropriate (including, operational without limitation, matters regarding capital expenditures, acquisitions and management activities of the Loan Parties (the “Monitor”compensation). The Monitor shall have access to the books and records of the Loan Parties, and shall be entitled to discuss financial, operational and management decisions with the officers of the Loan Parties.
Appears in 1 contract
Sources: Series a Securities Purchase Agreement (Blue Rhino Corp)
Observation Rights. (a) From The Board of Directors of Borrower shall hold its meetings on a regular basis but in any event shall meet at least quarterly. Unless the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) shall have been paid in full and full, then beginning with the Commitments are irrevocably terminated hereunder, or (ii) six month anniversary of the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunderTermination Date, the Loan Parties shall cause Beyond to have the right to appoint one (1) individual as a non-voting observer to the board of managers of Parent (the “Board” and such observer, the “Board Observer”), and shall cause the Board Observer to be entitled to attend meetings of the Board and any committee of the Board and to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees); provided, that (i) the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; and (ii) the Board may withhold information or materials from the Board Observer and exclude the Board Observer from any meeting or portion thereof (x) if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting would (A) adversely affect the attorney-client or work product privilege between the Parent and its counsel or (B) result in a conflict of interest or is otherwise required to avoid any disclosure that is restricted by any agreement with another Person or (y) (A) when any Agent, any Lender, the Loan Documents or the Obligations are the subject matter under discussion or (B) when such board materials or discussion relate directly to any Loan Party’s relationship, contractual or otherwise, with Beyond or any of its Affiliates, any Agent or the Lenders or any actual or potential transactions between or involving any Loan Party and Beyond or any of its Affiliates, any Agent or the Lenders. For the avoidance of doubt, the Board Observer (x) shall not constitute a manager and/or member of a Board committee and (y) shall not be entitled to any rights other than those provided by this Section 6.20.
(b) From the date hereof until the earlier to occur of (i) the date on which all outstanding Obligations (other than unasserted contingent indemnification Obligations) have been paid in full and the Commitments are irrevocably terminated hereunder, or (ii) the date on which neither Beyond nor any of its Affiliates is a Lender or Agent hereunder, at the reasonable expense of the Loan Parties, Beyond shall have the right to appoint have one representative attend any and all meetings of the Board of Directors and all of its committees (1including any adjournments thereof) individual to serve of each Credit Party either in person or by such other method as an advisor shall be allowed under the Bylaws for Directors. Notwithstanding any implication to the Loan contrary contained herein, no meeting of the Board of Directors of any Credit Party or any committee thereof shall be conducted unless such representative of the Lenders shall have been given prior written notice of such meeting at least two (2) Business Days prior to the date of such meeting. Such representative shall have the right to speak at such meetings and to make such suggestions and requests during such meetings as such representative deems appropriate, and the applicable Board of Directors shall consider such suggestions and requests in good faith. Except when the attorney-client privilege would be compromised in the reasonable opinion of counsel for the Credit Parties or in order to protect any confidential matters discussed therein with respect to financialwhich the Lenders may reasonably be determined by the Board of Directors to have a material and substantial conflicting interest, operational and management activities the Credit Parties hereby waive any right to exclude such representative from any such meeting or any right, whether legal, procedural or otherwise, to conduct any such meetings in executive session or otherwise to the exclusion of such representative. Exercise of the Loan Parties (the “Monitor”). The Monitor rights granted in this Section 6.01(h) shall have access to the books and records of the Loan Partiesnot be, and shall not be entitled deemed to discuss financialbe, operational and management decisions with participation by any Lender on the officers Board of Directors of the Loan Borrower or the other Credit Parties. In addition to the foregoing, the representative of the Lenders shall have the right to review any material consent resolutions of the Board of Directors of any Credit Party or any committee thereof prior to the execution thereof, and to make such suggestions and requests with respect thereto as such representative deems appropriate on behalf of the Lenders. The Borrower will pay for the reasonable out-of-pocket expenses incurred by the representative in attending Board and committee meetings or exercising any rights hereunder.
Appears in 1 contract