Common use of Board Observer Rights Clause in Contracts

Board Observer Rights. For so long as CPPIB is a Major Investor, CPPIB has the right to designate one non-voting board observer who will be entitled to attend all meetings of the Board of Directors of the Company (and, in connection therewith, receive notices of such meetings according to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the Board of Directors and receive copies of all materials provided to the Board of Directors, provided, however, that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of Directors.

Board Observer Rights. For so So long as CPPIB is a Major Investorany Obligations are outstanding and the Commitment remains in effect, CPPIB has the right to designate one non-voting board observer who will be entitled to attend all Borrower shall hold meetings of the Board its board of Directors directors (either in person or by telephone) at least once every calendar quarter. Lender shall be notified in writing of the Company date and time for each such board meeting by notice sent (and, in connection therewith, receive notices of such meetings according to which may be oral notice) at the same terms on which notices of such meetings are required to be provided time as notice thereof is sent to the members of Borrower’s board of directors (which notice shall also state whether Borrower expects any material non-public information will be disclosed in the Board of Directors pursuant meeting), and if Lender requests, Lender shall receive all reports and other board materials that are provided in writing or electronically (or otherwise made available) to the Company’s Bylawsboard members (and Borrower will advise Lender whether any material non-public information is included in the reports and board materials if requested by Lender), participate in all deliberations except any that are subject to attorney/client or other legal privilege of Borrower, any Subsidiary or any of their officers or directors. Lender shall have the Board of Directors right to have one (1) designated representative, at Borrower’s expense and receive copies of all materials provided subject to the Board of Directorsreasonable and customary confidentiality obligations, attend such board meetings as an observer; provided, however, that such observer shall have no voting rights with respect not constitute a member of such board and shall not be entitled to actions taken or elected not vote on any matters presented to be taken by the Board of Directorssuch board; provided, further, that CPPIB shall have such observer may be required to leave such meetings (or may receive certain materials with redacted portions) to the right extent a legal privilege arises in connection with the issues being discussed (or described in such materials), in each case, that reasonably would be expected to designate an alternate be lost if the observer were not to take the place of leave or were to receive such non-voting redacted information, as applicable. Lender and its designated board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially and non-disclosure agreement, in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof reasonably satisfactory to Borrower, prior to receiving the receipt of any documents or information that Borrower deems material non-public information, and such board observer and any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of Directors.

Board Observer Rights. For so long as CPPIB is a Major Investor, CPPIB any EM Party (or any Affiliate thereof) has the right to appoint a member to the Board pursuant to the Certificate of Designations of the Series C Preferred Stock, EM Renewables shall be entitled, in addition to its rights under the Certificate of Designations, to designate one non-voting board observer who will (the “Board Observer”) to the Company’s Board that is reasonably acceptable to the Company. EM Renewables shall be entitled to change the Board Observer with another designee of its choice at any time upon prior written notice to the Company. The Board Observer shall be entitled to attend all and participate in meetings of the Board of Directors of the Company (Board, and, in connection therewiththis respect, receive notices shall be given copies of all notices, minutes, consents, and other materials that the Company provides to its directors at the same time and in the same manner as provided to such meetings according directors, but the Board Observer shall not be entitled to vote on any matter and shall not be considered for purposes of establishing the presence of a quorum; provided that the Company may exclude the Board Observer from access to any material, notices, minutes or consents or meeting or portion thereof if the Board determines in good faith that such exclusion is reasonably necessary to preserve the attorney-client privilege, to prevent disclosure of any trade secret, or in circumstances in which a director designated by an EM Party has been recused from a Board meeting. Any Board Observer designated pursuant to this Section 5.1 shall enter into a confidentiality agreement on terms reasonably acceptable to the same terms on which notices Company. For the avoidance of such meetings are required to be provided to doubt, nothing in this Section 5.1 shall prohibit the members Board or any committee of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the Board of Directors and receive copies of all materials provided to the Board of Directors, provided, however, that such observer shall have no voting rights with respect to actions taken or elected not from taking any action proposed to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such non-voting board observer at any meeting of the Board or committee or by written consent in lieu of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of Directorsformal meeting.

Board Observer Rights. For so long as CPPIB is (a) During the period from the date hereof until the Investor holds Preferred Shares, based upon the then applicable conversion price, equal to at least five percent (5%) of the then issued and outstanding shares of the Company's Common Stock, based on the then applicable conversion price of such securities, Investor shall be entitled to appoint a Major Investor, CPPIB has the right to designate one non-voting board observer (the "OBSERVER") to the Company's Board of Directors who will is acceptable to the --------- Company; and such Observer shall be entitled to attend all meetings of the Board of Directors of the Company (and, in connection therewith, receive notices of such meetings according to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the 's Board of Directors and committees thereof (other than the audit, nomination, governance, and compensation committees) and shall receive copies notice of all meetings and all materials furnished to members of the Company's Board of Directors in their capacities as such at the same time and in the same manner as such notice and materials are provided to the Board of Directors, unless the Board of Directors of the Company shall in good faith determine, after having consulted with and considered the advice of outside counsel, that delivery of such notice and/or materials to Investor would constitute a breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law. Upon the request of the Board of Directors of the Company, the Observer will excuse himself or herself from any portion of the Board or committee meetings if the Board of Directors shall reasonably determine that the Observer's presence may violate the attorney-client privilege, create a conflict of interest or otherwise constitute a breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law. The materials furnished to Investor and the discussions and presentations in connection with or at such meetings shall be considered confidential information and Investor shall not disclose such materials and discussions to any third party; provided, however, that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate foregoing shall not be entitled to receive limit in any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) manner the -------- ------- rights of Investor under the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of DirectorsTechnology Agreements.

Board Observer Rights. For so long as CPPIB is (a) During the period from the date hereof until the Investor holds Preferred Shares, based upon the then applicable conversion price, equal to at least five percent (5%) of the then issued and outstanding shares of the Company's Common Stock, based on the then applicable conversion price of such securities, Investor shall be entitled to appoint a Major Investor, CPPIB has the right to designate one non-voting board observer (the "OBSERVER") to the Company's Board of Directors who will is acceptable to the Company; and such Observer shall be entitled to attend all meetings of the Board of Directors of the Company (and, in connection therewith, receive notices of such meetings according to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the 's Board of Directors and committees thereof (other than the audit, nomination, governance, and compensation committees) and shall receive copies notice of all meetings and all materials furnished to members of the Company's Board of Directors in their capacities as such at the same time and in the same manner as such notice and materials are provided to the Board of Directors, unless the Board of Directors of the Company shall in good faith determine, after having consulted with and considered the advice of outside counsel, that delivery of such notice and/or materials to Investor would constitute a breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law. Upon the request of the Board of Directors of the Company, the Observer will excuse himself or herself from any portion of the Board or committee meetings if the Board of Directors shall reasonably determine that the Observer's presence may violate the attorney-client privilege, create a conflict of interest or otherwise constitute a breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law. The materials furnished to Investor and the discussions and presentations in connection with or at such meetings shall be considered confidential information and Investor shall not disclose such materials and discussions to any third party; provided, however, that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate foregoing shall not be entitled to receive limit in any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) manner the rights of Investor under the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of DirectorsTechnology Agreements.

Board Observer Rights. For Upon the occurrence of an Event of Default and for so long as CPPIB is a Major Investorsuch Event of Default continues, CPPIB has the Required Noteholders collectively shall have the right to designate appoint one non-voting observer to the board observer who will of directors (or similar governing body) of each Credit Party and all committees of any of the foregoing boards (the “Observer”), which Observer shall be entitled appointed by the Required Noteholders. Such Observer shall be entitled, subject to applicable law and regulation (a) to receive the same notice and other materials in respect of all meetings (both regular and special) (or written consents) of the applicable board of directors as are furnished to members of such board, at the same time as the same are furnished to such members, together with an agenda for any such meetings, (b) to attend all meetings (and review all written consents) of the Board of Directors of the Company any such board and (and, in connection therewith, receive notices of such meetings according c) to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations discussions conducted at meetings (or with respect to actions to be taken by written consent) of the Board of Directors and receive copies of all materials provided to the Board of Directors, any such board; provided, however, that such observer Observer shall have no voting rights with respect not constitute a member of such board and shall not be entitled to actions taken or elected not vote on any matters presented to be taken by the Board of Directorssuch board; provided, further, that CPPIB shall have such Observer may be required to leave, or not be allowed to attend, any portion of a meeting (or may not receive certain materials) if such board reasonably believes after consultation with counsel, that a conflict of interest or an attorney client privilege arises or may arise in connection with the right to designate an alternate to take issues being discussed (or described in such materials).If requested by a Credit Party, the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate Observer shall execute a reasonable and customary confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving attendance at any information, and meetings of such board observer and or receipt of any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of Directorsmaterials.

Board Observer Rights. For so long as CPPIB is a Major Investor, CPPIB has the right Lender shall be entitled to designate one non-voting board observer who will be entitled (the "Board Observer") to attend all meetings any regular meeting (a "BOD Meeting") of the Board of Directors of Borrower (or any relevant committees thereof), except that the Company Board Observer shall not be entitled to vote on matters presented to or discussed by the Board of Directors (and, in connection therewith, receive notices or any relevant committee thereof) of Borrower at any such meetings according to meetings. The Board Observer shall be timely notified of the same terms on time and place of any BOD Meetings (which notices shall be held no less than once per month) and will be given written notice of such meetings are required all proposed actions to be taken by the Board of Directors (or any relevant committee thereof) of Borrower at such meeting as if the Board Observer were a member thereof. Such notice shall describe in reasonable detail the nature and substance of the matters to be discussed and/or voted upon at such meeting (or the proposed actions to be taken by written consent without a meeting). The Board Observer shall have the right to receive all information provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the Board of Directors and receive copies of all materials provided to the Board of Directors, provided, however, that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate any similar group performing an alternate to take the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate shall not be entitled to receive any notices, documents, materials executive oversight or other information, or be in attendance for any meeting similar function (or any portion relevant committee thereof) of the Board Borrower in anticipation of Directors if access to such notices, documents, materials or other information or attendance at such meeting (regular or portion thereof) could: (i) adversely affect attorney client privilege between special and whether telephonic or otherwise), in addition to copies of the Company and its counselrecords of the proceedings or minutes of such meeting, (ii) present an actual conflict of interest between CPPIB or any of its affiliates when provided to the members, and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties Board Observer shall keep such materials and information confidential in accordance with Section 12.9 of the Loan Agreement. Borrower shall reimburse the Board Observer for all reasonable out-of-pocket costs and expenses incurred in connection with its participation in any such BOD Meeting. Failure by Borrower to comply with its obligations under this Section 3.2 shall be an Event of DirectorsDefault under Section 8.2.2(a) of the Loan Agreement.

Board Observer Rights. For so long (a) Pursuant to Section 2.1(a) of the Investor Rights Agreement by and between the Company and the Investor dated as CPPIB is of June 24, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Investor Rights Agreement”), the Company shall cause one person designated by the Investor to be appointed as a Major Investor, CPPIB has the right to designate one non-voting board observer who will be entitled to attend the Board and the Committees. On the date hereof, the Investor designates Xxxxxx Xxxxx-Xxxxxx as the Observer. Except as set forth herein, the Company shall invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees (as determined by Observer from time to time). Except as set forth herein, Observer shall have the right to participate in any such meeting, but in no event shall Observer: (i) be deemed to be a member of Directors the Board or any Committee; (ii) have the right to vote on any matter under consideration by the Board or any Committee or otherwise have any power to cause the Company to take, or not to take, any action; (iii) have or be deemed to have, or otherwise be subject to, any duties, fiduciary or otherwise, to the Company or its stockholders or any duties, fiduciary or otherwise, otherwise applicable to the directors of the Company; or (iv) have any right or possess any authority to bind the Company or any of its subsidiaries in any way whatsoever. As a non-voting observer, and except as set forth herein, Observer will also be provided, concurrently with delivery to the directors of the Company (andand in the same manner delivery is made to them, in connection therewithcopies of all notices, receive notices of such meetings according agenda, minutes, consents, and all other materials or information, financial or otherwise, that are provided to the directors, including with respect to any Board or Committee meeting or any written consent in lieu of a Board or Committee meeting. If a meeting of the Board or a Committee is conducted via telephone or other electronic medium, except as set forth herein, Observer may attend such meeting via the same terms on which notices medium. The presence of such meetings are Observer shall not be taken into account or required for purposes of establishing a quorum. Notwithstanding anything in this Agreement to be provided the contrary, the Board or any Committee may exclude the Observer from all or any portion of any meeting or discussions, and can withhold or redact materials otherwise distributed to the members of the Board of Directors pursuant or such Committee, solely to the Company’s Bylaws)extent that (i) the Board reasonably determines based on the advice of counsel that such action is reasonably necessary to prevent the loss of attorney-client privilege, participate work product or similar privilege; provided that, in all deliberations such case, (x) any such exclusion shall only apply to such portion of such meeting or material which would be required to preserve such privilege and not to any other portion thereof; and (y) Observer shall be informed of the Board of Directors and receive copies of all materials provided to the Board of Directors, provided, however, that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such non-voting board observer at any meeting general subject matter of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting meetings (or portion thereof) could: (i) adversely affect attorney client privilege between from which Observer is excluded to the Company and its counselextent it would not result in the loss of such privilege, or (ii) present an actual the Board reasonably determines in good faith that the information being discussed at all or a portion of such meetings or included in such materials, (A) would give rise to a conflict of interest or otherwise relates to any actual or potential transactions between CPPIB or any of its affiliates and involving the Company or its affiliates, on the one hand, and the Investor Parties, the Observer or an Affiliate of the Investor Parties or the Observer, on the other hand, (B) would result in a breach of the Company’s confidentiality obligations to any of its affiliates third party or (iiiC) otherwisewould result in a violation of applicable laws; provided that, upon advice in any such case, (x) any such exclusion shall only apply to such portion of outside counselsuch meeting or material which would be required to avoid such conflict, violate the fiduciary breach of confidentiality or violation of applicable laws, and not to any other duties portion thereof; and (y) Observer shall be informed of the Board general subject matter of Directorsthe materials or meetings (or portion thereof) from which Observer is excluded to the extent it would not result in a potential breach of such confidentiality obligations to any third party or result in a violation of applicable laws.

Board Observer Rights. For Subject to, for the avoidance of doubt, Section 7(a)(ii)(7), following the Closing and at all times prior to the exercise of the Option, for so long as, subject to Section 7(b)(iv), (i) the Securities held by a Purchaser (assuming exercise of all of Purchaser’s Option) represent at least six percent of the outstanding Common Stock of the Company, calculated on a fully diluted basis using the treasury method of accounting, or (ii) the Initial Purchaser or any Permitted Transferee of Initial Purchaser’s whole Option has not Transferred all or any portion of the Securities to any Person that is not a Permitted Transferee, Initial Purchaser, or such Permitted Transferee of Initial Purchaser’s whole Option, as CPPIB is a Major Investorapplicable, CPPIB has shall have the right to designate one observer to the Board of Directors, so long as such observer is not an employee or a non-voting board independent director of Initial Purchaser or any of its subsidiaries. Such observer’s attendance shall be limited, in their nonvoting observer who will be entitled capacity, to attend all meetings of the Board of Directors of the Company (andDirectors, in connection therewith, receive notices of such excluding all executive sessions and committee meetings according to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the Board of Directors and Directors. Such observer shall receive copies of all notices, minutes, consents and other materials provided to the Board of Directors, Directors with respect to the meetings that such observer is entitled to attend; provided, however, that such (A) the observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate shall not be entitled to receive vote on any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of matter submitted to the Board of Directors or any of its committees nor to offer any motions or resolutions to the Board of Directors or such committees; (B) such observer shall agree to hold in confidence all information so provided; provided that such observer may share such information with Cronos and its Representatives; and (C) the Company reserves the right to withhold any information and to exclude such observer from any meeting or portion thereof if access to such notices, documents, materials or other information or attendance at such meeting would reasonably be expected (or portion thereofin the Company’s reasonable judgment) could: to result in (iw) adversely affect attorney a violation of applicable Law, (x) the disclosure of any trade secrets in a manner that would result in any such trade secrets no longer being protected under applicable Law following such disclosure, (y) a waiver of the protection of any attorney-client privilege between the Company and its counsel, or protection or (iiz) present an actual a conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of Directorsinterest.

Board Observer Rights. For The Required Investors shall have the right to appoint one observer to the board of directors (or similar governing body) of each of the Borrower and the Parent (an “Observer”) and the audit committees of such boards. Upon the occurrence of an Event of Default and for so long as CPPIB is a Major Investorsuch Event of Default continues, CPPIB has the Required Investors shall have the right to designate appoint one non-voting Observer to the board observer who will of directors (or similar governing body) of each Credit Party, the Issuer, each Subsidiary of any Credit Party or the Issuer, and all committees of any of the foregoing boards. Such Observer shall be entitled entitled, subject to applicable law and regulation (including regulations with respect to security clearance) (a) to receive the same notice and other materials in respect of all meetings (both regular and special) (or written consents) of the applicable board of directors as are furnished to members of such board, at the same time as the same are furnished to such members, together with an agenda for any such meetings, (b) to attend all meetings (and review all written consents) of the Board of Directors of the Company any such board and (and, in connection therewith, receive notices of such meetings according c) to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations discussions conducted at meetings (or with respect to actions to be taken by written consent) of the Board of Directors and receive copies of all materials provided to the Board of Directors, any such board; provided, however, that such observer Observer shall have no voting rights with respect not constitute a member of such board and shall not be entitled to actions taken or elected not vote on any matters presented to be taken by the Board of Directorssuch board; provided, further, that CPPIB such Observer may be required to leave, or not be allowed to attend, any portion of a meeting (or may not receive certain materials) if such board reasonably believes after consultation with counsel, that a conflict of interest or an attorney client privilege arises or may arise in connection with the issues being discussed (or described in such materials). The provisions of this Section 5.17 are not intended to be duplicative of, and shall be interpreted consistently with, any similar rights that the Investors may have under the right Equity Documents or Issuer’s operating agreement as in effect from time to designate an alternate to take time. If requested by a Credit Party, the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate Observer shall execute a reasonable and customary confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving attendance at any information, and meetings of such board observer and or receipt of any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, (ii) present an actual conflict of interest between CPPIB or any of its affiliates and the Company or any of its affiliates or (iii) otherwise, upon advice of outside counsel, violate the fiduciary or other duties of the Board of Directorsmaterials.

Board Observer Rights. For Subject to the execution of a non-disclosure agreement, customary in form and substance, as requested in good faith by the Company, the Company shall allow one representative of Xxxx, for so long as CPPIB is a Major InvestorXxxx and its Affiliates beneficially own in the aggregate at least 1,100,000 shares of Common Stock (including any Notes Shares that would be issuable upon conversion of any Notes), CPPIB has subject to proportional adjustments to reflect stock-splits, combinations, subdivisions, or the right to designate one non-voting board observer who will be entitled like, to attend all meetings of the Board of Directors and the Audit Committee of the Company (andBoard, in each case in a nonvoting capacity, and in connection therewithwith such observer’s attendance, receive notices the Company shall give such representative copies of such meetings according all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to the same terms Board or Audit Committee, as the case may be, prior to any such meeting. Xxxx shall provide the Company with written notice identifying the individual who shall exercise board observation rights on behalf of Xxxx from time to time, which notices of such meetings are required to individual shall be provided reasonably acceptable to the members Company. Notwithstanding the foregoing, the Board reserves the right, in the good faith exercise of its reasonable business judgment, to exclude any board observer from (1) attending any portion(s) of any Board or Audit Committee meeting or (2) receiving materials delivered to the rest of the Board or Audit Committee in connection with such portion(s) of Directors pursuant to such Board meeting if (x) the Company’s Bylaws), participate in all deliberations Company believes upon advice of the Board of Directors and receive copies of all materials provided to the Board of Directors, provided, however, counsel that such observer shall have no voting rights with respect exclusion is reasonably necessary to actions taken or elected not to be taken by preserve the Board of Directors; provided, further, that CPPIB shall have the right to designate an alternate to take the place of such nonattorney-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such board observer and any alternate shall not be entitled to receive any notices, documents, materials or other information, or be in attendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) adversely affect attorney client privilege between the Company and its counsel, ; (iiy) present an actual access to such information or attendance at such meeting could create a conflict of interest between CPPIB Xxxx or any of its affiliates observer representative, on the one hand, and the Company or any of its affiliates Company, on the other hand, or (iiiz) otherwise, upon advice such portion of outside counsel, violate the fiduciary or other duties a meeting is an executive session limited solely to members of the Board of DirectorsDirectors and legal counsel; provided, however, that notwithstanding the foregoing, the Board may, in the exercise of its reasonable business judgment, permit such observer to attend such portions of a Board or Audit Committee meeting and receive such materials on the condition that such observer does not trade in the Company’s common stock based on such information or share the contents of the meeting or the materials with any person or entity. The decision of the Board with respect to any such exclusion shall be final and binding.