Board Observer. (a) Priceline shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”). (b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).
Appears in 4 contracts
Sources: Standstill Agreement, Standstill Agreement (Priceline Group Inc.), Standstill Agreement (Priceline Group Inc.)
Board Observer. (a) Priceline During the Designation Rights Period, the Biotest Stockholder shall have the right, exercisable by delivering notice to the Company, be entitled to designate one (1) person as a board observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and ); provided, however, that the Company shall not be required to perform any of its Subsidiaries beneficially own at least obligations under this Section 6.2 in respect of any Board Observer to whom the Board Observer Threshold Shareholding of Directors in good faith objects for a reasonable and compelling reason (which, for the Companyavoidance of doubt, (ii) Priceline and may include if the Board of Directors determines in good faith that it would be inconsistent with its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “fiduciary duties to permit such person to act as a Board Observer Right”Observer).
(b) . The Board Observer shall be entitled have the right to attend (iin person or telephonically, at his or her discretion) to receive notice of each meeting (including telephonic meetings) of the Board of Directors as an observer (and not as a director) and shall not have the right to vote at any committee thereof in the same form and manner as is given to the members such meeting or otherwise act on behalf of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with Directors or the confidential provision of information to Priceline and its Subsidiaries and their respective directorsCompany; provided, officershowever, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a any portion of any such meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence Board of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on Directors determines in good faith (a) upon the advice of counsel that such exclusion is required to preserve the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or the Board of Directors, on the one hand, and its counsel, on the other hand, or (b) that the respective interests of the Company and its Subsidiaries, on the one hand, and Priceline those of the Biotest Stockholder or its SubsidiariesAffiliates, on the other hand, as to the matter(s) to be discussed or actions to be taken during such meeting or portion thereof, conflict or could be perceived to conflict. The Company will send, or cause to be sent, to the Board Observer (x) the notice of the time and place of any such meeting (the “Meeting Notice”) at the same time and in the People’s Republic same manner as the Meeting Notice is sent to the directors and (y) copies of China)all notices, reports, minutes and other documents and materials (collectively, “Meeting Materials”) provided to the Board of Directors in respect of each such meeting at the same time and in the same manner as they are provided to the directors; provided, however, that: (i) the Company may redact from any Meeting Notice, and may redact or withhold entirely any Meeting Materials, to the extent that the Board of Directors determines in good faith (a) upon the advice of counsel that such redaction or withholding is required to preserve the attorney-client privilege between the Company or the Board of Directors, on the one hand, and its counsel, on the other hand, or (b) that the respective interests of the Company and its Subsidiaries, on the one hand, and those of the Biotest Stockholder or its Affiliates, on the other hand, as to the matter(s) referred to in such redactions or withheld Meeting Materials, conflict or could be perceived to conflict; (ii) the failure to deliver or make available to the Board Observer any Meeting Notice or Meeting Materials shall not affect the validity of any action taken by the Board of Directors at any meeting to which such Meeting Notice or Meeting Materials relate; and (iii) it shall be the obligation of the Biotest Stockholder at all times to provide the Company with current contact information of the Board Observer, and the Company shall not be in breach of this Section 6.2 for failing to provide or make available any Meeting Notice or Meeting Materials to the Board Observer if the Biotest Stockholder has not provided such current contact information, or has provided inaccurate or no longer current contact information, to the Company. Notwithstanding anything to the contrary herein, prior to any Board Observer being understood that entitled to attend any portion of any meeting of the Board of Directors or to receive any Meeting Notice or Meeting Materials, the Board Observer shall not constitute a member of the Board execute and shall not be entitled to vote on, or consent to, any matters presented deliver to the Board. For the avoidance of doubt, subject Company a customary confidentiality agreement in form and substance reasonably satisfactory to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Company.
Appears in 3 contracts
Sources: Stockholders Agreement (Biotest AG), Stockholders Agreement (Adma Biologics, Inc.), Master Purchase and Sale Agreement (Adma Biologics, Inc.)
Board Observer. (a) Priceline shall have the right, exercisable by delivering notice With respect to the Company, to designate one observer to attend any meetings of the Board and each committee thereof of Directors of the Borrower:
(a) The Borrower shall invite a person designated by the Lenders (the “Board Observer”) for so long as to attend and participate in meetings of the Board of Directors of the Borrower (including any meetings of committees ) in a nonvoting observer capacity; provided, however, that in no event shall the Observer (i) Priceline and its Subsidiaries beneficially own at least be deemed to be a member of the Board Observer Threshold Shareholding in the Companyof Directors, (ii) Priceline and without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Borrower or its Subsidiaries comply in all material respects with the provisions of Section 2.1, stockholders; or (iii) Priceline have the right to propose or offer any motions or resolutions. The Observer shall not have any right to vote on any matter presented to the Board of Directors or any committee thereof. The Borrower shall give the Observer written notice of each meeting of the Board of Directors at the same time and its Subsidiaries comply in the same manner as the members of the Board of Directors, shall provide the Observer with all material respects with written materials and other information given to members of the provisions Board of Section 3.1(aDirectors at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided nor have access to any confidential supervisory information) and (iv) shall cause or, to the Marketing Agreement extent such an obligation is unenforceable, use its reasonable best efforts to cause the Observer to be permitted to attend as an observer at all meetings thereof, and in full force the event the Borrower proposes to take any action by written consent in lieu of a meeting, the Borrower shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and effect substance of such action and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with including the provisions thereof (the “Board Observer Right”)proposed text of such written consents.
(b) The Board Observer shall be entitled (i) to receive notice advancement of each meeting (including telephonic meetings) expenses and rights to indemnification from the Borrower to the same extent provided by the Borrower to its directors under the Borrower’s organizational documents as in effect on the date hereof. The Borrower acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses constitute third-party rights extended to the Observer by the Borrower and do not constitute rights to indemnification or advancement of expenses as a result of the Board and any committee thereof in the same form and manner Observer serving as is given to the members a director, officer, employee or agent of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Borrower. The Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall will agree to hold in confidence and trust all information so provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar enter into a non-trading period disclosure agreement in customary form if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of requested by the Exchange Act) Borrower. The Borrower may withhold any information and (C) exclude the Board Observer may be excluded from all or a portion of any meeting or from receiving all portion thereof if access to such information or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer attendance at such meeting or any portion thereof or could adversely affect the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or Borrower and its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)legal counsel.
Appears in 3 contracts
Sources: Loan and Security Agreement (Fat Brands, Inc), Loan and Security Agreement (Fat Brands, Inc), Loan and Security Agreement (Fat Brands, Inc)
Board Observer. (a) Priceline Following the receipt of SoftBank CFIUS Approval and subject to Section 6.05, SoftBank shall have the exclusive right, exercisable by delivering notice to for so long as SoftBank owns the CompanySoftBank Floor Amount, to designate one observer natural person to attend any all meetings of the Board and each committee thereof of Directors in a non-voting observer capacity (the “SoftBank Board Observer”) ). Following the receipt of Honda CFIUS Approval and subject to Section 6.05, Honda shall have the exclusive right, for so long as Honda owns the Honda Floor Amount, to designate one natural person to attend all meetings of the Board of Directors in a non-voting observer capacity (the “Honda Board Observer”, and together with the SoftBank Board Observer, the “Board Observers”). The following terms and conditions will apply to the Board Observers:
(a) The Company shall deliver to (i) Priceline and its Subsidiaries beneficially own at least the SoftBank Board Observer Threshold Shareholding copies of all reports, notices, minutes, consents, actions taken or proposed to be taken without a meeting and other materials in each case (and to the Companyextent) that the Company provides the same to the SoftBank Director, each such delivery to be made concurrently with the delivery of such materials to the SoftBank Director and (ii) Priceline the Honda Board Observer copies of all reports, notices, minutes, consents, actions taken or proposed to be taken without a meeting and its Subsidiaries comply other materials in all material respects each case (and to the extent) that the Company provides the same to the Board of Directors, subject to the restrictions set forth in Section 6.14, each such delivery to be made concurrently with the provisions delivery of Section 2.1such materials to the Board of Directors; provided, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “that failure to deliver any such notice or materials to any Board Observer Right”).shall not impair the validity of any action taken by the Board of Directors;
(b) The the Board Observer Observers shall be entitled (i) to receive notice of each meeting (including telephonic meetings) attend all meetings of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either Directors in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetingstelephone, and the Company covenants to take reasonable measures to facilitate shall ensure that appropriate arrangements are made such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not Observers will be restricted in any confidential communications or discussions with or the confidential provision of information able to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares hear everyone during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 meeting of the Exchange Act) and Board of Directors at which the Board Observers participate by telephone; provided, that (Ci) the SoftBank Board Observer may be excluded from all or a access to any portion of any meeting to the same extent as the SoftBank Director (or, in the event the SoftBank Director is not appointed, as if the SoftBank Director were so appointed) would be so excluded (or recused) pursuant to the terms hereof and (ii) the Honda Board Observer may be excluded from receiving all or a access to any portion of any materials provided to the member of the Board (x) meeting to the extent that the presence of matters with respect to which Honda Competitively Sensitive Information is shared, presented or discussed;
(c) the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofObservers shall be observers only, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the actual members of the Board of Directors and shall not have any of the rights, duties or obligations of a Director (including that the Board Observers shall not have the right to vote on any matter that may come before the Board of Directors). The Board Observers shall not count towards any quorum;
(d) subject to Section 6.04(f), SoftBank has the right to remove and replace or substitute the SoftBank Board Observer from time to time by providing written notice to the Company;
(e) subject to Section 6.04(g), Honda has the right to remove and replace or substitute the Honda Board Observer from time to time by providing written notice to the Company;
(f) upon such time as SoftBank owns less than the SoftBank Floor Amount, the SoftBank Board Observer shall be automatically removed and shall cease to have any of the rights contemplated by this Section 6.04, and the Company takes reasonable measures right of SoftBank to facilitate designate, appoint, remove and replace the SoftBank Board Observer shall be null and void;
(g) upon such time as Honda owns less than the Honda Floor Amount, the Honda Board Observer shall be automatically removed and shall cease to have any of the rights contemplated by this Section 6.04, and the right of Honda to designate, appoint, remove and replace the Honda Board Observer shall be null and void; and
(h) prior to appointment, the Board Observer’s attendance at any such meeting in accordance Observers will each enter into a confidentiality agreement with this Section 3.2(b)the Company, on terms mutually acceptable to the Board of Directors and the Board Observers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (General Motors Co), Limited Liability Company Agreement (General Motors Co), Limited Liability Company Agreement (General Motors Co)
Board Observer. Subject to the other terms and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Priceline Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least to attend any meetings of the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) Board. The Board Observer shall be entitled to (ix) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct prior to conducting any business by written consent without giving resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (iiy) at the Board Observer’s discretion, to attend each Board meeting or meeting in the same manner as given to the members of any committee thereof, either in person or by telephonic conference, the Board and to participate fully in all discussions among directors of the Board at such meetingsmeeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided provided, that, notwithstanding any other provision of this Section 3.22.1, (Ai) the Board Observer shall agree agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives), ) and (Bii) such Board Observer Observer, Investor and Priceline Guarantor and their Affiliates shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures as if they were Directors of the Company (it being understood that that, subject to Section 5.1 hereof, such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and or procedures shall not restrict Priceline Investor or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at Act in accordance with such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of Chinapolicies); it being understood that the . The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, on or consent to, to any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (GDS Holdings LTD), Investor Rights Agreement (CyrusOne Inc.)
Board Observer. (a) Priceline Following the Closing and for so long as the Investment Percentage is at least 33%, the Investor Parties shall have the right, exercisable by delivering notice to but not the Companyobligation, to designate appoint one observer representative (such Person, the “Board Observer”) to attend any be present (whether in person or by telephone) at all meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)thereof.
(b) The Once appointed, the Company shall send such Board Observer shall be entitled (i) to receive notice all of each meeting the notices, information and other materials (including telephonic meetingsmeeting notices and agendas) of the Board and any committee thereof in the same form and manner as is given that are distributed to the members of the Board and the committees thereof, all at the same time and in the same manner as such notices, agenda, information and other materials as and when are provided to such the members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof or such committee, as applicable. The Company shall conduct any business by written consent without giving such prior notice to provide the Board Observer with the same travel and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the expense reimbursement with respect to such Board Observer’s discretion, attendance at Board and committee meetings as is provided to attend each Board meeting or meeting of any committee thereof, either the directors.
(c) Notwithstanding anything to the contrary in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.22.02, (A) the Board Observer shall Investor Parties agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion such portions of any Board or committee meeting or and that such information and other materials referred to in Section 2.02(b) may be withheld from receiving all or a portion of any materials provided to the member of the Board (x) Observer, in each case, as and solely to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result indetermines, based on the advice of counsel, (i) is necessary to avoid any conflict of interest with respect to any potential transaction between the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline Investor, the Board Observer or its Subsidiariesany of their respective Affiliates, on the other hand, in if and to the People’s Republic of China); it being understood extent that such conflict would have disqualified the Board Observer shall not constitute from attending such meeting or receiving such materials had the Board Observer been a member director of the Company at the relevant time or (ii) is necessary to avoid the waiver of the attorney-client privilege with respect to the matters to be discussed or the matters included in the information to be distributed; provided that, before the Company may exclude the Board Observer from any portion of any Board or committee meeting or withhold from the Board Observer any Board or committee materials pursuant to the foregoing provisions of this sentence, the Company shall notify the Investor Parties of its determination to do so, and consult with the Investor Parties to minimize or eliminate the need for such exclusion or withholding.
(d) The Board Observer shall not be entitled to vote on, or consent to, any matters presented provide to the Board. For Investor Parties any and all information received by such Board Observer pursuant to this Section 2.02; provided that, for the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company Observer shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies a Representative of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Investor Parties under Section 3.2(b)5.05.
Appears in 3 contracts
Sources: Shareholder Agreement (MRC Global Inc.), Purchase Agreement (MRC Global Inc.), Shareholder Agreement
Board Observer. In addition to the nomination rights set forth in Section 3(a) above, (ai) Priceline until the Topco Sunset Date, Topco Equityholders shall have the right, exercisable by delivering notice to but not the Companyobligation, to designate one observer a person (a “Non-Voting Observer”), and (ii) until the Horizon Sunset Date, Horizon shall have the right, but not the obligation, to designate a Non-Voting Observer, in each case, to attend any meetings of the Board and each committee thereof (including any meetings of any committees thereof) or any board of directors or similar governing body of any subsidiary of the Company (a “Board ObserverSubsidiary Board”) for so long as in a non-voting observer capacity. Any such Non-Voting Observer shall be permitted to attend all meetings of the Board or such Subsidiary Board. The Topco Equityholders and Horizon shall each have the right to remove and replace its Non-Voting Observer at any time and from time to time. The Company shall furnish to any Non-Voting Observer (i) Priceline notices of Board or Subsidiary Board meetings no later than, and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in using the same form and manner as is given of communication as, notice of Board or Subsidiary Board meetings are furnished to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials directors and (ii) at copies of any materials prepared for meetings of the Board Observer’s discretion, or Subsidiary Board that are furnished to attend each Board meeting the directors no later than the time such materials are furnished to the directors. Any such Non-Voting Observers shall be required to execute or meeting otherwise become subject to any codes of any committee thereof, either in person conduct or by telephonic conference, and confidentiality agreements of the Company or such subsidiary generally applicable to participate fully in all discussions among directors of the Board at Company or such meetingssubsidiary. Notwithstanding the foregoing, and the Company covenants (or such subsidiary) reserves the right to take reasonable measures withhold any information and to facilitate such attendance and discussion; provided that, notwithstanding exclude the Non-Voting Observers from receiving any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of materials and/or attending any meeting or from receiving all portion thereof if access to such information or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer attendance at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could would reasonably be expected to result in, based on adversely affect the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company (or such subsidiary) and its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)counsel.
Appears in 3 contracts
Sources: Transaction Agreement (Horizon Acquisition Corp), Stockholders’ Agreement (Vivid Seats Inc.), Stockholders’ Agreement (Horizon Acquisition Corp)
Board Observer. After the Initial Closing, and until a change is made to the constituency of the current Board of Directors by Lender, one individual appointed by Lender (athe “Observer”) Priceline shall have the right, exercisable by delivering notice right to attend (which attendance may occur telephonically) and participate in all meetings of Borrower’s Board of Directors and each of its Subsidiaries and any committees thereof. The Observer shall have no right to vote on any matter presented to the Company, to designate one observer to attend Board of Directors or any meetings committee thereof. Borrower shall give the Observer written notice of each meeting thereof at the same time and in the same manner as the other members of the Board of Directors or such committee receive notice of such meetings (but in any event no later than ten (10) Business Days prior to any such meeting). Borrower shall permit the Observer to attend and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply participate in all material respects with meetings thereof. Subject to Section 7(c)(ii)(G), the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board all written materials and any committee thereof in the same form and manner as is other information given to the members of the Board of Directors and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than committees in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or otherwise, at the receipt by the Board Observer of same time such materials or any portion thereof, as the case may be, could reasonably be expected and information are given to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board of Directors and such committees in connection with a vote or such meetings of the Board of Directors or committees thereof, and the Company takes reasonable measures Observer shall keep such materials and information confidential. If Borrower proposes to facilitate take any action by written consent in lieu of a meeting of the Board Observer’s attendance at any of Directors, then Borrower shall give prior notice thereof to the Observer prior to the effective date of such meeting consent describing the nature and substance of such action and including the text of such written consents. Borrower shall pay the reasonable out-of-pocket costs and expenses of the Observer incurred in accordance connection with this Section 3.2(b)attending such meetings of the Board of Directors and committees.
Appears in 2 contracts
Sources: Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Vespoint LLC), Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Midwest Holding Inc.)
Board Observer. From and after July 1, 2014, so long as (a) Priceline shall 100% of the Shares continue to be Beneficially Owned by the Purchaser and (b) there is no member of the Company’s Board of Directors, other than the Company’s Chief Executive Officer, that has relevant experience in the cold beverage industry, as determined by the Purchaser in its sole discretion, the Purchaser will have the right, exercisable by delivering notice to the Company, right to designate one observer to attend any meetings of the Board and each committee thereof a representative (the “Board Observer”) for so long to act as (i) Priceline and its Subsidiaries beneficially own at least a non-voting observer of meetings of the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects of Directors with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) right to receive notice of each meeting (including telephonic meetings) and attend or otherwise participate in all meetings of the Board of Directors and any committee thereof in to receive all information furnished to the Company’s directors at the same form and manner time as it is given to the members of so furnished; provided that (i) the Board and of Directors will have the same materials as and when provided right to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to approve the Board Observer and a copy of the proposed consent(such approval not to be unreasonably withheld, any exhibits, annexes conditioned or schedules thereto and any related materials delayed) and (ii) at the Board Observer’s discretion, to attend each of Directors may exclude the Board meeting or meeting Observer from such portions of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of meeting where the Board of Directors reasonably determines that such exclusion is necessary to preserve attorney-client privilege or to avoid a conflict of interest. The Purchaser, in consideration of its attendance and participation at such meetings, and the Company covenants hereby agrees to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) cause the Board Observer shall agree to hold be bound by and comply with the Company’s confidentiality, trading windows and black-out policies applicable to insiders and others receiving the Company’s confidential and proprietary information in confidence all information the forms provided to the Purchaser prior to the date of this Agreement, as amended from time to time (provided that no such policies shall restrict the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision from making disclosures of information to Priceline Purchaser and its Subsidiaries and their respective directorsAffiliates, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may information so disclosed will be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b5.4).
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Coca Cola Co), Common Stock Purchase Agreement (Green Mountain Coffee Roasters Inc)
Board Observer. (a) Priceline The Company hereby agrees that, from and after the Closing Date, for so long as Castle Creek and its Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall have the right, exercisable invite a person designated by delivering notice Castle Creek and reasonably acceptable to the Company, Company (provided that all managing principals and principals of Castle Creek shall be deemed reasonably acceptable to designate one observer the Company for purposes hereof) (the “Observer”) to attend any meetings of the Board of Directors and each committee the Bank Board (including any meetings of committees thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least on which the Board Observer Threshold Shareholding Representative would be permitted to attend) in the Companya nonvoting, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) nonparticipating observer capacity. The Board Observer shall be entitled (i) to receive attend such meetings only in the event Castle Creek does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting (including telephonic meetings) of the Board of Directors and any committee thereof the Bank Board at the same time and in the same form and manner as is given to the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials as and when provided information are given to such members (both before or after provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee Company shall give written notice thereof shall conduct any business by written consent without giving such prior notice to the Board Observer prior to the effective date of such consent describing the nature and a copy substance of such action and including the proposed consenttext of such written consents provided, any exhibitshowever, annexes or schedules thereto and any related materials and that (ii1) at the Board Observer’s discretion, to attend each Board meeting or meeting Observer may be excluded from executive sessions comprised solely of any committee thereof, either in person or independent directors by telephonic conference, and to participate fully in all discussions among directors the Chairman of the Board at (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such meetingsexclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Company covenants Bank Board shall have the right to take reasonable measures withhold any information and to facilitate such attendance and discussion; provided thatexclude the Observer from any meeting or portion thereof if doing so is, notwithstanding any other provision in the written advice of this Section 3.2counsel, (A) necessary to protect the Board attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) Castle Creek shall cause its Observer shall to agree to hold in confidence and trust and to act in a fiduciary manner, with respect to all information provided to such Observer (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer public domain through no fault of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliatesparty, or (y3) later lawfully acquired from other sources by the party to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); which it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(bwas furnished).
Appears in 2 contracts
Sources: Side Letter Agreement (Castle Creek Capital Partners VI, LP), Stock Purchase Agreement (Riverview Financial Corp)
Board Observer. (a) Priceline shall have For so long as the rightFive Point Members or Devon, exercisable by delivering notice to as the Companycase may be, are entitled to designate one observer or more directors to attend any meetings the Board, the Five Point Members or Devon, as applicable, shall also have the right to appoint up to a number of the Board and each committee thereof board observers (the each, a “Board Observer”) equal to the number of directors the Five Point Members or Devon (each, in such capacity, an “Appointing Party”), as applicable, are entitled to designate pursuant to Section 3.1. Additionally, for so long as (ia) Priceline and its Subsidiaries beneficially own the Five Point Shareholders collectively have Beneficial Ownership of at least 5% of the Board Observer Threshold Shareholding in Voting Power of the Company, (ii) Priceline then the Five Point Members shall have the right to collectively appoint one Board Observer, and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The the Devon Shareholders have Beneficial Ownership of at least 5% of the Voting Power of the Company, then the Devon Shareholders shall have the right to collectively appoint one Board Observer. Each Board Observer shall be entitled (i) to receive notice of each meeting attend all meetings (including telephonic meetings) of the Board and any committee thereof in the same form its committees and manner as is given to the members receive all related materials of the Board and its committees as an observer. Each Appointing Party may at any time replace any individual then serving as such Appointing Party’s Board Observer with another individual appointed by such Appointing Party to serve as a successor Board Observer. No Board Observer shall in any circumstance have any right to participate in any vote, consent or other action of the same materials Board and its committees, and each Board Observer shall execute a reasonably acceptable confidentiality agreement with the Company. Notwithstanding anything in this Agreement to the contrary, the Board or any of its committees (solely as to the material or meeting of such committee) may exclude any Board Observer from access to any material or meeting or portion thereof if the Board or such committee concludes, in good faith, that (i) such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company and when its subsidiaries and its counsel (provided that any such exclusion shall apply only to such members (both before portion of such material or after a meeting, including copies of minutes thereofmeeting which would be reasonably required to preserve such privilege), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected discussion relates to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries an existing or its Affiliates, potential contractual or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline other relationship or its Subsidiaries or (2) matters related to business competition transaction between the Company or any of its Subsidiariessubsidiaries, on the one hand, and Priceline the applicable Appointing Party or any of its SubsidiariesAffiliates, on the other hand, or (iii) such exclusion is necessary because a Board Observer or the applicable Appointing Party has or may have a conflict of interest with respect to any matter under discussion or consideration by the Board or any committee thereof. In the event that a Board Observer or Appointing Party has or may have a conflict of interest with respect to any matter under discussion or consideration by the Board or any committee thereof, such Board Observer and Appointing Party shall be required to disclose to the Board, in writing, the People’s Republic existence of China); it being understood that the such conflict, and such Board Observer shall not constitute a member of the Board and shall not be entitled to vote onrecuse himself or herself from such meeting; provided that, or consent to, any matters presented notwithstanding anything in this Agreement to the Board. For the avoidance of doubtcontrary, subject to the first sentence extent such conflict of this Section 3.2(b), in the event that any regular or special meeting of the interest is personal to such Board is convenedObserver, the Company applicable Appointing Party shall be deemed have the right, upon delivery of written notice to be in full compliance with the provisions of this Section 3.2(b)Company, provided that the to appoint a single substitute Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any attend such meeting in accordance with this Section 3.2(bor any subsequent meeting (or the applicable portion thereof).
Appears in 2 contracts
Sources: Shareholders' Agreement (WaterBridge Infrastructure LLC), Shareholders Agreement (WaterBridge Infrastructure LLC)
Board Observer. (a) Priceline Until all of the Notes are no longer outstanding, the holders of the Notes shall have the right, exercisable by delivering notice be permitted to appoint one board observer to the Company, to designate one observer to attend any meetings Board of Directors of the Board and each committee thereof Company (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the ), with such Board Observer Threshold Shareholding in to be determined by the Company, Required Holders and subject to the approval of the Company (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “such approval not to be unreasonably withheld). The Required Holders shall be permitted to remove any Board Observer Right”).
(b) and/or appoint any successor Board Observer as they shall elect in their sole discretion from time to time. The Board Observer shall be entitled (i) permitted to receive notice of each meeting (including telephonic meetings) attend and participate in all meetings of the Board of Directors (but shall not have voting rights), and any committee thereof shall receive all information, notices, reports, written consents, meeting minutes and other materials (the “Board Information”) provided to the members of the Board of Directors of the Company, in each case, substantially simultaneously with, and substantially in the same form manner and manner as to the same extent as, such Board Information is given to the members of the Board and of Directors of the same materials as and when provided to such members (both before or after a meeting, including copies Company. Notices of minutes thereof), including materials provided other than in connection with a meeting, and neither any meeting of the Board nor any committee thereof of Directors shall conduct any business by written consent without giving such prior notice be distributed to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting least forty-eight hours in advance of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors meeting of the Board at such meetingsof Directors, and provided that in the event the Company covenants determines, in good faith, it is advisable to take reasonable measures to facilitate such attendance and discussion; provided thathold a meeting on less than 48 hours advance notice, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree receive notice no later than the notice delivered to hold in confidence all information provided (provided that the Board Observer of Directors. The Company shall not be restricted in any confidential communications or discussions with or promptly reimburse the confidential provision of information to Priceline reasonable and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence documented expenses of the Board Observer at such meeting or in connection with attending any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Directors.
Appears in 2 contracts
Sources: Note Exchange Agreement (Kingstone Companies, Inc.), Note and Warrant Exchange Agreement (Kingstone Companies, Inc.)
Board Observer. (a) Priceline Subject to the terms and conditions of this Agreement, for so long as FP satisfies the Nomination Threshold, FP shall have the rightright to designate, exercisable from time to time, one individual to serve as a Board observer (the “FP Board Observer”); provided, that such FP Board Observer shall be an employee of FP Parent and shall be otherwise acceptable to the Company in its reasonable discretion. For so long as FP has the right to designate a FP Board Observer, FP shall have the right to remove and replace such FP Board Observer at any time by delivering providing notice to the Company, subject to the qualifications set forth in this Section 2(a). If FP ceases to satisfy the Nomination Threshold, all rights of FP to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the an FP Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “for any previously designated FP Board Observer Right”)to observe under this Agreement shall terminate without the requirement of further action by the Company or any other person or entity.
(b) The FP Board Observer shall be entitled (i) have the right to receive notice of attend each meeting (including telephonic meetings) of the Board and any committee thereof in a non-voting observer capacity in the same form and manner as is given to the members of the Board; provided that the FP Board Observer shall not be entitled to attend any portion of any Board meeting that constitutes an executive session of the Board that is limited solely to independent directors of the Board and the Company’s independent auditors or legal counsel, as applicable. The Company shall provide to the FP Board Observer notice of every meeting of the Board and copies of all documents pertaining to any such meeting, in the same materials manner as and when provided to each member of the Board. Notwithstanding the foregoing, the Company shall have the right to withhold any such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither from the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the FP Board Observer and a copy to exclude the FP Board Observer from all or any portion of any meeting of the proposed consentBoard solely to the extent the Company determines, in good faith and on the advice of its legal counsel (including in-house counsel), that such action is necessary or advisable to (i) preserve any exhibitsevidentiary or attorney-client privilege or attorney work product privilege, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting avoid a conflict of interest or meeting of (iii) avoid any committee thereof, either in person or disclosure which is restricted by telephonic conference, and to participate fully in all discussions among directors applicable legal requirements. The rights of the FP Board at such meetings, Observer to receive information and attend Board meetings are subject to the FP Board Observer executing a confidentiality agreement in a form reasonably acceptable to the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) FP. FP agrees that the FP Board Observer shall agree only share confidential information with FP in accordance with and subject to hold in confidence all the terms of such confidentiality agreement and any confidential information provided (provided that to or learned by FP from the FP Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)confidentiality agreement.
Appears in 2 contracts
Sources: Nomination Agreement (Eventbrite, Inc.), Nomination Agreement (Eventbrite, Inc.)
Board Observer. (a) Priceline In addition to the rights set forth in Section 2.1 and Section 2.2, prior to the Sunset Date, NLI shall also have the rightright to appoint one representative, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof which shall not be a Secondee (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company), (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of attend each meeting (including telephonic meetings) of the Board and each meeting of any committee thereof on which a NLI Designee serves, whether such meeting is conducted in person or by teleconference or video conference; provided that, without the prior approval of the chairman of the Board or the applicable chairman of the committee thereof, the Board Observer shall not be permitted to attend, or receive any Board Materials related to, drafted for or presented at, any executive sessions of the Board or any committee of the Board on which a NLI Designee is not serving; provided further that, once during any 12-month period, in the same form event that a Board Observer is unable to attend a meeting of the Board or any committee on which a NLI Designee serves due to illness, injury, or other extraordinary circumstances, NLI may designate, with 3 business days advance written notice, an alternative Person to attend such meeting on behalf of the Board Observer, which Person shall not be a Secondee. The Company shall (a) provide to such Board Observer all communications and manner as is given materials that are provided by the Company or the Company’s Representatives to the members of the Board and generally, at the same time and in the same manner that such communications and materials as and when are provided to such members (both before or after a meetingother Board members, including copies of all notices, Board packages, reports, presentations, minutes thereof), including materials provided other than in connection with a meeting, and neither consents (the “Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to Materials”) and (b) not unreasonably prevent the Board Observer and a copy of from observing, or delay the proposed consentarrangement for observation of, any exhibitssuch meetings; provided, annexes or schedules thereto and any related materials and (ii) at however, that if the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors Company reasonably determines that the exclusion of the Board at Observer from any portion of a meeting of the Board or omission of any portion of the Board Materials is necessary to preserve the Company’s attorney-client privilege or as a result of material conflict of interest of such meetingsBoard Observer (such determination to be based on the advice of counsel to the Company), and then the Company covenants will have the right to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) exclude the Board Observer shall agree from such portions of meetings of the Board or the committees thereof in which such information is discussed, and omit to hold in confidence all information provided (provided that provide the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), such information.
(Bb) such Board Observer and Priceline shall be subject As a condition to the Company’s obligations under Section 2.3(a) with respect to a person designated to act as a Board Observer, each Board Observer will agree in writing:
(i) during the term of any service as a Board Observer to comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-employee members of the Company, including, without limitation, the Company’s code of conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies policy, Regulation FD policy, related person transactions policy and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established corporate governance guidelines, in accordance with Rule 10b5-1 of the Exchange Act) and (C) each case as previously approved by the Board Observer may be excluded and as amended from all or a portion of any meeting or from receiving all or a portion of any materials provided time to the member time; and
(ii) to keep confidential and not publicly disclose discussions and matters considered in meetings of the Board (x) to the extent that the presence and its committees or other confidential information of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of receives from the Board Company, in accordance with and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting terms of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Confidentiality Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Corebridge Financial, Inc.), Stock Purchase Agreement (Corebridge Financial, Inc.)
Board Observer. (a) Priceline The Company hereby agrees that, from and after the Closing Date, for so long as Castle Creek and its Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall have the right, exercisable invite a person designated by delivering notice Castle Creek and reasonably acceptable to the Company, Company (provided that all managing principals and principals of Castle Creek shall be deemed reasonably acceptable to designate one observer the Company for purposes hereof) (the “Observer”) to attend any meetings of the Board of Directors and each committee the Bank Board (including any meetings of committees thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least on which the Board Observer Threshold Shareholding Representative would be permitted to attend) in the Companya nonvoting, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) nonparticipating observer capacity. The Board Observer shall be entitled (i) to receive attend such meetings only in the event Castle Creek does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting (including telephonic meetings) of the Board of Directors and any committee thereof the Bank Board at the same time and in the same form and manner as is given to the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials as and when provided information are given to such members (both before or after provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee Company shall give written notice thereof shall conduct any business by written consent without giving such prior notice to the Board Observer prior to the effective date of such consent describing the nature and a copy substance of such action and including the proposed consenttext of such written consents provided, any exhibitshowever, annexes or schedules thereto and any related materials and that (ii1) at the Board Observer’s discretion, to attend each Board meeting or meeting Observer may be excluded from executive sessions comprised solely of any committee thereof, either in person or independent directors by telephonic conference, and to participate fully in all discussions among directors the Chairman of the Board at (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such meetingsexclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Company covenants Bank Board shall have the right to take reasonable measures withhold any information and to facilitate such attendance and discussion; provided thatexclude the Observer from any meeting or portion thereof if doing so is, notwithstanding any other provision in the written advice of this Section 3.2counsel, (A) necessary to protect the Board attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) Castle Creek shall cause its Observer shall to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (provided except to the extent that the Board Observer shall not such information can be restricted in any confidential communications or discussions with or the confidential provision of information shown to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)have been (1) previously known by such party on a nonconfidential basis, (B2) in the public domain through no fault of such Board party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 portions of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member meetings of the Board (x) of Directors as well as the Bank Board to the extent that the presence Board of the Board Observer at such meeting or any portion thereof Directors or the receipt by the Board Observer of such materials or any portion thereofBank Board, as the case may be, could reasonably will, in any such portion thereof be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) discussing any matters related to business competition between Castle Creek, the Company Transaction Documents, or its Subsidiaries, on any of Castle Creek’s rights or obligations under any of the one hand, and Priceline Transaction Documents or its Subsidiaries, on the any other hand, in the People’s Republic of China); it being understood matter that the Board Observer shall not constitute a member Chairman of the Board and shall not of Directors or the Chairman of the Bank Board determines in good faith is or may be entitled to vote on, or consent to, any matters presented adverse to the Board. For the avoidance interests of doubtCastle Creek provided, subject to the first sentence of this Section 3.2(b)however, in the event that any regular or special meeting of the Board is convened, the Company no matter shall be deemed to be in full compliance with adverse to the provisions interests of this Section 3.2(b), Castle Creek merely because such matter may adversely impact the price of any of the Company’s Securities. Castle Creek covenants and agrees to hold all information obtained from its Observer as provided that the Board Observer is given the notice in the same form prior sentence in confidence to comply with all requirements and manner as, and copies of the same materials as and when provided to, the obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the Company takes reasonable measures extent (if at all) applicable to facilitate the Board Observer’s attendance at any such meeting . If Castle Creek and its Affiliates in accordance with the aggregate no longer have a Minimum Ownership Interest, Castle Creek will have no further rights under this Section 3.2(b)2.
Appears in 2 contracts
Sources: Stock Purchase Agreement (HCSB Financial Corp), Side Letter Agreement (Castle Creek Capital Partners VI, LP)
Board Observer. (a) Priceline Following the Effective Date and throughout the term of this Agreement, at any time during which a TCW Director is serving on the Board, TCW shall have the rightright to designate two individuals (such individuals, exercisable the “TCW Observers”), each to be appointed as a non-voting observer to the Board by delivering delivery of written notice to the Company, to designate one observer . The TCW Observers shall have the right to attend any all meetings of the Board, except as otherwise required by applicable law or Stock Exchange Rules, and may participate in discussions at such meetings at the discretion of the Board. The TCW Observers shall have the right to receive all notices, minutes, consents, information and materials relating to meetings of the Board and each committee thereof (that the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own TCW Observers have the right to attend at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form time that such notices, minutes, consents, information and manner as is given materials are distributed to the members of the Board and Board; provided, however, that the same materials as and when provided Company reserves the right to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor withhold any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, information and to participate fully in all discussions among directors of the Board at exclude such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates TCW Observers from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of thereof if the Board (x) determines in good faith that access to the extent that the presence of the Board Observer such information or attendance at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could would reasonably be expected to result in, based on adversely affect the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company and its counsel, where the sole purpose of such meeting or portion thereof is to address matters that may reasonably be deemed to constitute actual or potential conflicts of interest between the TCW Director, such TCW Observer or TCW (solely in its Subsidiariescapacity as a lender or agent under the Financing Agreement), on the one hand, and Priceline or its Subsidiariesthe Company, on the other hand, including, without limitation, discussions regarding the refinancing or repayment of, covenant negotiations with respect to, defaults under or amendment, waiver or forbearance negotiations with respect to, the Loan Documents (as defined in the PeopleFinancing Agreement). The TCW Observers may share the materials received pursuant to the preceding sentence with Affiliates of TCW, for the purposes of such Persons’ interests in the loans to, or equity investment in, the Company, including TCW’s Republic of China)and its Affiliates’ directors, officers, managers, partners, employes, advisors, consultants, accountants and attorneys; it being understood provided, however, that such recipients must be subject to confidentiality restrictions no less onerous than those applicable to the Board TCW Observers. In the event that a TCW Observer shall not constitute is excluded from access to any materials or meetings pursuant to this Section 2.02, the Company will, prior to such exclusion, and to the extent practicable, provide such TCW Observer with a member notice of the Board occurrence of and basis for the exclusion, along with a general description of the matter for which the exclusion occurred. The Company shall reimburse the TCW Observers for all reasonable and documented out-of-pocket costs and expenses (including travel expenses) incurred in connection with the TCW Observers’ attendance at meetings of the Board. The presence of the TCW Observers shall not be entitled to vote on, taken into account or consent to, any matters presented to required for the Board. For the avoidance purposes of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)establishing a quorum.
Appears in 2 contracts
Sources: Governance Agreement (TCW Group Inc), Governance Agreement (Accuray Inc)
Board Observer. (a) Priceline For so long as Purchaser (together with its Affiliates) beneficially owns at least 50% of the Purchased Stock, Purchaser shall have the right, exercisable by delivering notice be entitled to appoint an observer to the Company’s Board of Directors (the “Board”) and the Transaction Committee (the “Purchaser Observer”). For the avoidance of doubt, the right to designate one appoint an observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions Transaction Committee shall not be transferrable to any person other than an Affiliate of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)Purchaser.
(b) The Board Purchaser Observer shall be entitled to attend all meetings of the full Board and the Transaction Committee (iwhether in person, telephonic, electronic or other) to receive in a non-voting, observer capacity. The Company will give notice of each meeting (including telephonic meetings) of such Board or Transaction Committee meetings to the Board Purchaser Observer at the same time and any committee thereof in the same form manner that it gives notice to Board or Transaction Committee members and, unless the Board determines otherwise based on factors identified in Section 3.8(d), will give the Purchaser Observer copies of all documents furnished to any Board or Transaction Committee member in connection with any such meeting. Purchaser may change the Purchaser Observer at any time upon delivery to the Company of reasonable prior written notice signed by Purchaser. Subject to Section 3.8(d), the Company shall allow the Purchaser Observer to attend Board or Transaction Committee meetings by telephone or electronic communication if desired. The failure of the Purchaser Observer to attend any meeting (or to receive any portion of a notice of a meeting) or to receive any materials or other information shall not prevent any such meeting from proceeding or otherwise affect the validity of such meeting (or any written consent in lieu of a meeting) or any actions taken at such meeting (or any written consent in lieu of such meeting). The Purchaser Observer shall not be entitled to vote on any matters submitted to a vote at any meeting.
(c) Unless the Board in good faith determines otherwise based on factors identified in Section 3.8(d), the Company shall provide to the Purchaser Observer copies of all notices, minutes, consents and manner as is given other materials that it provides to the members of the Board and or Transaction Committee (collectively, “Board Materials”), at the same materials time and in the same manner as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice information is delivered to the Board or Transaction Committee members.
(d) Notwithstanding anything in this Section 3.8 to the contrary, the Company may exclude the Purchaser Observer and a copy from access to any Board Materials, meeting or portion thereof if (1) the Board concludes, acting in good faith, upon advice of the proposed consentCompany’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or its Affiliates and its counsel; provided, however, that any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, such exclusion shall only apply to attend each Board meeting such portion of such material or meeting of any committee thereofwhich would be required to preserve such privilege, either (2) such exclusion is necessary or advisable (in person or by telephonic conference, the reasonable and to participate fully in all discussions among directors good faith judgment of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofTransaction Committee, as the case may be, could reasonably be expected ) to result in, based on comply with the advice terms and conditions of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries bona fide confidentiality agreements with third parties or its Affiliatesapplicable law, or (y3) such Board Materials or discussion relates to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline a bona fide existing or its Subsidiaries or (2) matters related to business competition potential conflict of interest between the Company or any of its SubsidiariesAffiliates, on the one hand, and Priceline Purchaser, the Purchaser Observer or its Subsidiariesany of their respective Affiliates, on the other hand, in the People’s Republic of China); it being understood that the Board .
(e) The Purchaser Observer shall not constitute a member of the Board and shall not be entitled to vote onany fees or other compensation for acting as an observer; provided, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be responsible for all reasonable and customary out-of-pocket expenses incurred in full compliance connection with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Purchaser Observer’s attendance at any Board and Transaction Committee meetings in the same manner and to the same extent as such meeting expenses are reimbursed for members of the Board, which amounts shall be reimbursed in accordance with this Section 3.2(b)cash as incurred.
(f) No person shall be appointed as a Purchaser Observer until such person has entered into a reasonable and customary board observer agreement whereby he/she agrees to hold in confidence all information so provided.
Appears in 2 contracts
Sources: Investment Agreement (AlTi Global, Inc.), Investment Agreement (AlTi Global, Inc.)
Board Observer. Upon the Tranche II Closing and for so long thereafter as CommScope beneficially owns at least 20% of the outstanding Common Shares (a) Priceline shall have the rightwhich, exercisable by delivering notice for greater certainty, does not include any Tranche III Shares or Tranche IV Shares prior to issuance pursuant to the Companyterms of this Agreement) (the “Board Observer Threshold”), to CommScope may designate one observer an individual who is an officer or director of CommScope or an Affiliate of CommScope to attend any meetings of the Board and each committee thereof board of directors of the Company as an observer (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least ). Notwithstanding the foregoing, CommScope shall be entitled to a Board Observer if it falls below the Board Observer Threshold Shareholding in solely as a result of an Excluded Issuance. Notwithstanding the Companyprevious sentence, (ii) Priceline and its Subsidiaries comply in all material respects with if CommScope owns less than 5% of the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof outstanding Common Shares (the “Minimum Threshold”) for any reason, including if it falls below the Minimum Threshold solely as a result of one or more Excluded Issuances, the ability of CommScope to designate a Board Observer Right”).shall expire. The Company shall:
(a) provide the Board Observer with notice of each meeting of the board of directors, the notice to be not less than the minimum period required by applicable law or the Company’s by-laws, provided that if directors waive the minimum notice period, that waiver shall reduce the notice required to be given to the Board Observer to the minimum notice permitted by that waiver;
(b) The deliver to the Board Observer shall be entitled (i) the same materials delivered to receive notice of the directors for each meeting (including telephonic meetings) of the board of directors;
(c) deliver to the Board and any committee thereof in the same form and manner as is given to Observer drafts of all resolutions proposed for signature by the members of the board of directors of the Company (in lieu of a meeting) before such resolutions are so signed; and
(d) permit the Board and Observer to attend each meeting of the same board of directors as an observer; except with respect to materials as and when provided to such members (both before or after resolutions, or attendance at a meeting, including copies of minutes thereof), including materials provided other than in connection with which the subject matter expressly relates to a meetingtransaction in which CommScope is an interested party, and neither where the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either participation in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer or access to confidential information relating to the Company would give rise to a conflict of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of interest between CommScope and the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).
Appears in 2 contracts
Sources: Subscription Agreement (Commscope Inc), Subscription Agreement (Hydrogenics Corp)
Board Observer. (a) Priceline Subject to Section 2(b), during the Standstill Effectiveness Period, the Investor shall have the right, exercisable by delivering notice to the Company, right to designate one observer individual (such designee or its replacement pursuant to attend any meetings of the Board and each committee thereof (this Section 2, as applicable, the “Board Observer”) for to attend in person or join telephonically all meetings of the Board in a non-voting, observer capacity; provided that, unless previously given permission by the Company, the Board Observer may not participate in any meeting of the Board while physically present in the United States unless at least one member of the Board is participating in such meeting while physically present in the United States. The Board Observer shall be given notice of all meetings of the Board in substantially the same manner and at substantially the same time as notice is sent to the members of the Board, and shall receive a copy of all notices, agendas and other material, written information distributed to all the members of the Board in substantially the same manner and at substantially the same time as sent to the members of the Board; provided that, as a condition to receiving such information, the Board Observer shall have entered into a mutually acceptable, customary confidentiality agreement with the Company with respect to all information so long as provided; provided, further, that the Company reserves the right to withhold any information and to exclude the Board Observer from the applicable portion of a meeting if the Board determines, in the exercise of its reasonable discretion, that access to such information or attendance at such portion of the meeting would result in (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, a loss of an attorney-client privilege or attorney work product protection or (ii) Priceline and its Subsidiaries comply in all material respects a conflict of interest (including information or meetings with respect to any action to be taken, or any determination to be made, by the Board regarding any transaction, agreement or dispute with the provisions Investor or any of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”Affiliates or any Related Persons).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of Notwithstanding the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision provisions of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel2, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and Investor shall not be entitled to vote on, or consent to, any matters presented designate a particular Board Observer pursuant to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), 2(a) in the event that any regular or special meeting of the Board is convenedreasonably determines in good faith that the designation of such individual would cause the Company to be not in compliance with applicable law or regulation. In such case described in the immediately preceding sentence, the Company Investor shall withdraw the designation of such proposed designee and, subject to Section 2(a), shall be deemed permitted to designate a replacement therefor (which replacement designee shall also be in full compliance with subject to the provisions requirements of this Section 3.2(b2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).
Appears in 2 contracts
Sources: Investor Rights Agreement (Third Point Reinsurance Ltd.), Investor Rights Agreement (Third Point Reinsurance Ltd.)
Board Observer. Series C Observers
3.6.1 As long as Viking, GA or any of their Affiliates continue to hold any Shares, the Company shall invite a representative of each of Viking, GA or any of their Affiliates (aeach a “Series C Observer”) Priceline shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any all meetings of the Board and each or any sub-committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board (excluding the executive committee), in a nonvoting observer capacity and, in this respect, shall give such Series C Observer copies of all notices, minutes, consents, and any committee thereof other materials that it provides to its directors at the same time and in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meetingdirectors; provided, including copies of minutes thereof)however, including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving that such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer representatives shall agree to hold in confidence all information provided and trust and to act in a fiduciary manner (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directorsbut, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For for the avoidance of doubt, subject such representative shall not be deemed a fiduciary) with respect to all information so provided; and provided further, that, upon advice of counsel, the first sentence Company reserves the right to withhold any information and to exclude such representatives from any meeting or portion thereof if access to such information or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of this Section 3.2(b)trade secrets or a Conflict of Interest.
3.6.2 As long as Foresite, in the event that Bain or venBio or any regular or special meeting of the Board is convenedtheir Controlled Affiliates continue to hold any Shares, the Company shall be deemed invite a representative of each of Foresite, Bain and venBio or any of their Controlled Affiliates (each a “Series B Observer”) to be in full compliance with the provisions attend all meetings of this Section 3.2(b), provided that the Board and, with respect to meetings of committees of the Board, only the Series B Observer for Bain shall be invited to attend provided, that in the event a Series B Director cannot attend any committee meeting, such Series B Director is given entitled to have an additional Series B Observer attend such meeting in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the notice same time and in the same form manner as provided to such directors; provided, however, that such representatives shall agree to hold in confidence and trust and to act in a fiduciary manner as(but, for the avoidance of doubt, such representative shall not be deemed a fiduciary) with respect to all information so provided; and copies provided further, that, upon advice of the same materials as and when provided tocounsel, the members of Company reserves the Board right to withhold any information and to exclude such representatives from any meeting or portion thereof if access to such information or attendance at such meeting would adversely affect the attorney-client privilege between the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting and its counsel or result in accordance with this Section 3.2(b)disclosure of trade secrets or a Conflict of Interest.
Appears in 1 contract
Board Observer. (a) Priceline shall have From the rightdate hereof until the date which is fifteen (15) months from the Effective Date, exercisable by delivering notice the Company hereby grants to each Plan Sponsor the Companyoption and right to appoint a representative (each, to designate one observer an “Observer”) to attend any all meetings of the Board and each committee thereof (all Committees in a non-voting, observer capacity. Each Observer may be designated from time to time by the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in applicable Plan Sponsor by providing written notice to the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice Company agrees that the Observers may participate fully in discussions of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice all matters brought to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofCommittee, as the case may be, could reasonably for consideration, but in no event shall any Observer (i) be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter deemed to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not or any Committee; (ii) have or be entitled deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its shareholders; or (iii) have the right to propose or offer, or vote on, any motions or consent to, any matters presented resolutions to the BoardBoard or Committees. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convenedUpon request, the Company shall be deemed allow the Observers to be attend Board or Committee meetings by telephone or electronic communication.
(c) Unless an Observer provides notice in full compliance with writing to the provisions Company that the Observer does not wish to receive such information, the Company shall provide to the Observers copies of this Section 3.2(ball notices, minutes, consents and other materials that it provides to Board members (collectively, “Board Materials”), provided that including any draft versions, proposed written consents, and exhibits and annexes to any such materials at the Board Observer is given the notice same time and in the same form and manner as, and copies of as such information is delivered to the same materials as and when provided toBoard members. Each Observer may be required to execute a confidentiality agreement reasonably acceptable to the Company prior to receiving such information or attending Board meetings.
(d) Notwithstanding anything in this Section 3.6 to the contrary, the members of Company may exclude the Observers from access to any Board Materials, meeting or portion thereof if the Board and concludes, acting in good faith, that such exclusion is reasonably necessary to preserve the solicitor-client or litigation privilege between the Company takes and its counsel (provided that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege).
(e) The Company agrees to reimburse each Observer promptly for reasonable measures to facilitate the Board out-of-pocket expenses incurred in connection with such Observer’s attendance at any such meeting Board and Committee meetings; provided that all reimbursements payable by the Company under this Section 3.6 shall be payable in accordance with this Section 3.2(b)and subject to the Company’s policies and practices with respect to director expense reimbursement then in effect.
Appears in 1 contract
Sources: Investor Rights Agreement (Concordia International Corp.)
Board Observer. (a) Priceline So long as the DLJIP Entities shall have beneficially own in aggregate at least 51% of the rightnumber of shares of the Senior Preferred Stock beneficially owned by them as of the date hereof, exercisable by delivering (i) the Company shall give DLJ Investment Partners II, L.P. written notice to the Company, to designate one observer to attend any meetings of each meeting of the Board and each committee thereof (at the “Board Observer”) for so long as (i) Priceline same time and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companysame manner as notice is given to the directors, (ii) Priceline the Company will permit one representative of the DLJIP Entities (a "BOARD REPRESENTATIVE") to attend and its Subsidiaries comply fully participate in all material respects with meetings of the provisions of Section 2.1, Board and all committees thereof and (iii) Priceline and its Subsidiaries comply in all material respects the Company shall consult with the provisions Board Representative with respect to any fundamental change in the nature of Section 3.1(a) the Company's business; PROVIDED that the Board Representative shall have no right to vote on any resolutions or other matters upon which members of the Board may vote; and (iv) PROVIDED FURTHER that in the Marketing Agreement is case of telephonic meetings conducted in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects accordance with the provisions Company's bylaws and applicable law, the Board Representative shall be given the opportunity to listen and fully participate in such telephonic meeting. The Board Representative shall also be provided with all written materials and other information (including, without limitation, copies of minutes of meetings) given to directors in connection with such meetings at the same time such materials and information are given to the directors. If the Company proposes to take any action by written consent in lieu of a meeting of the Board or any committee thereof, the Company shall give written notice thereof (to the “Board Observer Right”)Representative promptly following the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company shall pay the reasonable out-of-pocket expenses of the Board Representative incurred in connection with attending such board and committee meetings.
(b) The Board Observer So long as the DLJIP Entities shall be entitled beneficially own in aggregate at least 51% of the number of shares of the Senior Preferred Stock beneficially owned by them as of the date hereof, at any reasonable time during normal business hours and from time to time, but not more frequently than once in any six-month period, upon five (i5) days written notice, the Company will permit any one or more of the DLJIP Entities to receive notice examine the books and records of each meeting the Company; PROVIDED that the DLJIP Entities shall use all reasonable efforts to ensure that any such examination or visit results in a minimum of disruption to the operations of the Company.
(including telephonic meetingsc) Prior to receiving any written information or materials referred to in Section 2.06(a), attending any meetings of the Board and or any committee thereof of its committees, or examining any books or records pursuant to Section 2.06(b), each of the DLJIP Entities shall be required to execute a confidentiality agreement in the same form and manner as is given substance satisfactory to the members of the Board Company and the same materials as DLJIP Entities and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in use any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as information only for the case may be, could reasonably be expected to result in, based on purpose of evaluating and monitoring the advice investment of the Company’s external counsel, the loss of attorney-client privilege DLJIP Entities in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, Opco and otherwise in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)applicable law.
Appears in 1 contract
Sources: Investors' Agreement (Decrane Aircraft Holdings Inc)
Board Observer. (a) Priceline Subject to Section 2.4, the Investors shall have the right, exercisable by delivering notice to the Company, be entitled collectively to designate one observer individual (who may be an employee of the Investors or their Affiliates) who is acceptable to the Parent, acting reasonably, (the "Board Observer") to attend any meetings of the Board of Directors, committee meetings of the Board of Directors and any executive sessions, as a non-voting observer. Notwithstanding the foregoing, each committee thereof (of the “following committees of the Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least of Directors shall be entitled to exclude the Board Observer Threshold Shareholding from attending any meeting, or portion thereof, of such committee in its discretion: the Audit Committee, the Corporate Governance Committee and the Compensation Committee. The Board Observer shall not have the right to vote at any meeting of the Board of Directors or be counted towards determining whether there is quorum for such meeting, but shall be entitled to participate in the Companydiscussions of the Board of Directors, (ii) Priceline committee meetings of the Board of Directors and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)any executive sessions.
(b) The Board Observer shall be entitled Subject to Section 2.3(e), the Parent shall:
(i) to receive notice provide the Board Observer with notice, if any, of each meeting (including telephonic meetings) of the Board and any committee thereof of Directors (telephonic or otherwise), in the same form manner and manner at the same time as is given provided to the members Board of the Board and the same materials as and when provided to such members Directors;
(both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice ii) provide to the Board Observer copies of all materials provided to the Board of Directors, in the same manner and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the same time as provided to the Board Observer’s discretionof Directors;
(iii) provide to the Board Observer drafts of all resolutions proposed for signature by the Board of Directors (in lieu of a meeting) before such resolutions are so signed, in the same manner and at the same time as provided to the Board of Directors; and
(iv) permit the Board Observer to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board of Directors (telephonic or otherwise), including, without limitation, any committee meeting of the Board of Directors or executive sessions, as an observer, except with respect to materials or resolutions, or attendance at such meetingsportions of any such meeting, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, in which (A) the Board Observer shall agree subject matter relates to hold a transaction, proceeding or matter in confidence all information provided which the Investors or their Affiliates or investee entities (provided that other than the Parent) are or may be interested parties, and where the participation in such portion of any such meeting by the Board Observer shall not be restricted or access to Confidential Information relating to the Parent would, upon the advice of counsel, give rise to a conflict of interest between the Investors and the Parent, as determined by the Board of Directors in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)sole discretion, (B) the Board of Directors determines, upon the advice of counsel, that such exclusion is reasonably necessary to preserve solicitor-client privilege or (C) the Board of Directors determines, upon the advice of counsel, that such exclusion is reasonably necessary for the Parent or its subsidiaries to comply with their respective confidentiality obligations.
(c) The Investors shall advise the Parent of the identity of the Board Observer and Priceline shall be subject that it has designated, from time to time. The parties acknowledge that the Company’s initial Board Observer is: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline .
(d) From the date on which the Parent provides notice to the Investors or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may of a bona fide claim or possible claim for a breach or threatened breach by the Board Observer of the Observer Agreement, the Parent shall not be excluded from all required to comply with Section 2.3(b) unless and until such claim is abandoned or a portion resolved substantially in the Board Observer's favour.
(e) The Board Observer will be required to execute the Observer Agreement before being permitted to attend any meetings of any meeting or from receiving all or a portion the Board of Directors and/or being provided with any materials provided to the member Board of Directors.
(f) The Investors shall be entitled to designate one alternate Board Observer, who shall be acceptable to the Parent, acting reasonably, to attend meetings of the Board of Directors, committee meetings of the Board of Directors and any executive session, in the place of the Board Observer, provided that (xi) the Investors provide written notice of the identity of such alternate Board Observer to the extent that Board of Directors as soon as practicable prior to the presence meeting at which such alternate Board Observer will attend, and (ii) such alternate Board Observer shall have executed an Observer Agreement before being permitted to attend any meetings of the Board of Directors and/or being provided with any materials provided to the Board of Directors. For greater certainty, the Parent shall not be required to comply with the timing requirements of Section 2.3(b).
(g) The Parent shall not be required to (i) pay any compensation to the Board Observer or any alternate Board Observer or (ii) provide any indemnification, or maintain coverage under any policies of directors' and officers' insurance, in favour of the Board Observer at such meeting or any portion thereof alternate Board Observer; provided, however, that the Parent shall reimburse any reasonable costs or the receipt expenses incurred by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the alternate Board Observer shall not constitute a member in connection with his or her attendance at meetings of the Board and shall not be entitled to vote onof Directors, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting committee meetings of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at Directors or any such meeting in accordance with this Section 3.2(b)executive sessions.
Appears in 1 contract
Board Observer. (a) Priceline At any time when a Purchaser, together with its permitted transferees, holds one or more Notes with an outstanding principal amount of at least $5,000,000, such Purchaser shall have the right, exercisable by delivering notice right to the Company, appoint one individual to designate one serve as an observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as on the Board of Directors of the Company (i) Priceline and its Subsidiaries beneficially own at least the “Board”); provided, however, that the selection of the Board Observer Threshold Shareholding in shall be subject to the prior written consent of the Company, such consent not to be unreasonably withheld (ii) Priceline it being understood and its Subsidiaries comply in all material respects with agreed that the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”shall not be a member of the Board).
(b) . The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given subject to the members of the Board rights and the same materials responsibilities as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than set forth in connection with a meeting, and neither the Board nor any committee thereof this Section 4.14. The Company shall conduct any business by written consent without giving such prior notice to invite the Board Observer to attend all meetings of Board in a nonvoting observer capacity and, in this respect, and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at subject to the Board Observer’s discretionhaving informed the Company that it wishes to attend, to attend each the Company shall give the Board meeting or meeting Observer copies of any committee thereofall notices, either in person or by telephonic conferenceminutes, consents, and other materials that it provides to participate fully its directors at the same time and in all discussions among directors of the Board at same manner as provided to such meetingsdirectors; provided, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided thathowever, notwithstanding any other provision of this Section 3.2, (A) that the Board Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided (provided further, that Company shall have the right to withhold any information and to exclude the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all portion thereof if (A) access to such information or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer attendance at such meeting or any portion thereof or could adversely affect the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege between Company and its counsel; (B) result in relation to the Company, its Subsidiaries disclosure of trade secrets or its Affiliates, a conflict of interest; or (yC) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between if the Company is advised by legal counsel that such exclusion is required in connection with the fiduciary or its Subsidiariesother duties or obligations of the Board, on provided that in such case the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that Company shall notify the Board Observer shall not constitute a member of in writing that information has been so withheld from the Board and Observer (provided that, for the avoidance of doubt, such information shall not be entitled required to vote on, or consent to, any matters presented be provided to the BoardBoard Observer). For the avoidance of doubt, subject to the first sentence of this Section 3.2(b)4.14 shall automatically terminate upon the occurrence of a Public Company Event, and any Board Observer in the event that any regular existence at such time shall have no further observation or special meeting of the Board is convened, the Company shall be deemed other rights pursuant to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)4.14.
Appears in 1 contract
Board Observer. For so long as Evolve owns more than two percent (a2%) Priceline of the issued and outstanding Common Units and is not a Non-Funding Member, Evolve shall have the right, exercisable by delivering notice to the Company, right to designate one (1) natural Person to act as a Board observer to attend any meetings of the Board and each committee thereof (the a “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least all meetings of the Board Observer Threshold Shareholding in Board, which designation shall be made by written notice to the Company. Subject to the limitations set forth in this Section 5.6, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled to attend all meetings of the Board and, so long as Evolve owns at least ten percent (i) to receive notice of each meeting (including telephonic meetings10%) of the Board issued and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meetingoutstanding Class B Preferred Units, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person and the Company shall provide to the Board Observer any notices of Board or by telephonic conferencecommittee meetings, as applicable, and a copy of all meeting materials currently with providing such notices and materials to participate fully the Board or committee, as applicable, substantially concurrently with delivery of such notices and meeting materials to the Managers. The Board Observer shall not have any voting rights or count towards any quorum with respect to any action brought before the Board or any Board committee. Notwithstanding any rights to be granted or provided to the Board Observer under this Agreement, the Board or any two Managers acting together may exclude a Board Observer from access to any materials or meetings (but not prevent delivery of a notice of such meeting) or portion thereof, (a) if the Board Observer does not execute and deliver to the Company a confidentiality agreement reasonably acceptable to the Company prior to such meeting or the delivery of such materials, (b) if such exclusion is reasonably (in all discussions among directors the good faith determination of the Board at or such meetings, and Managers) necessary to preserve the attorney-client privilege between the Company covenants or its Subsidiaries and counsel, or any privilege under any common interest or joint defense doctrine, or to take reasonable measures to facilitate such attendance and discussioncomply with law, rule or regulation; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions provided with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer summary of such materials or any portion thereofminutes of such meeting that, in each case, provides as the case may be, could much detail as reasonably be possible about such materials or such meeting without reasonably being expected to result in, based on the advice of the Company’s external counsel, the loss of forfeit attorney-client privilege privilege. Nothing herein shall prevent the Board from taking any action by written consent in relation to the Companyaccordance with this Agreement, its Subsidiaries or its Affiliatesprovided, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiarieshowever, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or will receive any such written consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance substantially concurrently with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the other members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Board.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Nuvve Holding Corp.)
Board Observer. For purposes of this Agreement, the “Board Observer Period” shall commence after the Initial Closing and shall continue until the earlier to occur of the following events: (ai) Priceline Purchaser divests Shares resulting in Purchaser holding fewer than twenty million (20,000,000) Shares; (ii) the number of Shares held by Purchaser represents less than ten percent (10%) of the outstanding shares of Common Stock of the Company; or (iii) the sale of all or substantially all of the assets of the Company or a merger, consolidation or similar transaction in which the shareholders of the Company immediately before the transaction hold less than a majority of the outstanding shares of the Company (or its parent) immediately after consummation of the transaction. During the Board Observer Period, the Company shall have the rightallow a representative of Purchaser, exercisable by delivering notice reasonably satisfactory to the Company, to designate one observer to attend any all meetings of the Board and each committee thereof in a non-voting observer capacity (the “Board Observer”) for so long as ). The Observer shall (i) Priceline and its Subsidiaries beneficially own at least be entitled to attend each telephonic or in person meeting of the Board Observer Threshold Shareholding in the Company, Board; (ii) Priceline not have any voting rights; and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline not be included for the purposes of determining the presence of a quorum at any meeting of the Board. The Company shall provide to Purchaser the same notices, minutes, consents and other materials that the Company provides to its Subsidiaries comply directors at the same time and in all material respects with the provisions same manner as provided to such directors. The Company shall have the right to withhold any information and to exclude the Observer from any portion of Section 3.1(a) and (iv) a meeting if the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) Chairman of the Board and any committee thereof in the same form and manner as is given to the or a majority of members of the Board reasonably and the same materials as and when provided in good faith determine, upon advice of counsel, that access to such members information or attendance would (both before i) jeopardize the attorney-client privilege between the Company and its counsel or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting result in a violation of any committee thereof, either in person applicable law or by telephonic conference, and would otherwise be inappropriate due to participate fully in all discussions among directors of the Board at such meetings, and conflicting or differing interests between the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding Purchaser or any other provision Affiliate of Purchaser or any Person of which Purchaser is an Affiliate. The rights set forth in this Section 3.2, (A) are contingent upon the Board Observer shall agree and Purchaser agreeing to hold in confidence and trust all information provided (provided that the Board to it or learned by it in connection with its rights under this Section. The Observer and Purchaser shall not be restricted in any confidential communications disclose or discussions use such information other than for a Company purpose or with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating consent or use such information in connection with managing Purchaser’s investment in the Company. Purchaser acknowledges that he it is aware that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or she selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities, and it agree agrees not to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during engage in any “blackout” or similar non-unlawful trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 securities of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline unlawful misuse or its Subsidiaries, on the other hand, in the People’s Republic misappropriation of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)information.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Adamis Pharmaceuticals Corp)
Board Observer. (a) Priceline shall have the rightIf, exercisable by delivering notice to the Companyfor whatever reason, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Renesas Director (or any replacement for the Renesas Director) is not elected by the Company’s stockholders as a director to the Board Observer Threshold Shareholding of Directors in the Company, accordance with this Section 2.1 or (ii) Priceline and its Subsidiaries comply Renesas determines not to appoint or nominate a director to the Board of Directors, in all material respects with each case at any time it is entitled to nominate the provisions of Renesas Director pursuant to Section 2.12.1(a), (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇ shall be entitled to appoint one (1) non-voting observer (the “Renesas Observer”) to the Board of Directors in lieu of the Renesas Director that is not elected or otherwise nominated or appointed by ▇.▇▇▇▇▇▇ B.V. complies in all material respects with to the provisions thereof (Board of Directors, as applicable, subject to a customary confidentiality commitment of the “Board Observer Right”).
(b) Renesas Observer. The Board Renesas Observer shall be entitled (i) to receive notice of each attend and participate in any meeting (including telephonic meetings) of the Board and any committee thereof in of Directors that the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Renesas Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, would have been entitled to attend each Board meeting had he or meeting she been elected as a director, but shall, for the avoidance of doubt, not have any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board voting rights at such meetings, subject to a customary confidentiality commitment of the Renesas Observer. The Company shall give the Renesas Observer copies of all notices, minutes, consents and other materials that it provides to directors at the Company covenants same time and in the same manner as provided to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board directors. The Renesas Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided (provided that so provided. The Company reserves the Board right to withhold any information or to exclude the Renesas Observer shall not be restricted in from any confidential communications meeting, or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as is reasonably determined by a majority of the case may bemembers of the Board of Directors in good faith, could reasonably upon written advice of counsel, to be expected necessary to result in, based on the advice protect competitively sensitive information of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Boardpreserve attorney client privilege. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Renesas Observer’s attendance at any such meeting in accordance with this Section 3.2(b)appointment shall terminate immediately upon the appointment or election of a Renesas Director.
Appears in 1 contract
Sources: Investor Rights and Disposition Agreement (Wolfspeed, Inc.)
Board Observer. (a) Priceline Following the Closing and until the Board Seat Fall-Away, the Holders shall have the right, exercisable by delivering notice to the Company, right to designate one observer individual (such designee or its replacement pursuant to attend any meetings of the Board and each committee thereof (this Section 6(b), as applicable, the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company), (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and who shall initially be ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇ B.V. complies (or another designee reasonably acceptable to the Issuer) to attend in person or join telephonically all material respects with meetings of the provisions thereof (Board in a non-voting, observer capacity. From time to time, prior to the “Board Seat Fall-Away, the Holders may remove and/or replace the Board Observer Right”).
(b) with another designee of the Holders. The Board Observer shall be entitled (i) to receive given notice of each meeting (including telephonic meetings) all meetings of the Board and any committee thereof in substantially the same form manner and manner at substantially the same time as notice is given sent to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meetingBoard, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and receive a copy of all notices, agendas and other material, written information distributed to all the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors members of the Board in substantially the same manner and at such meetings, and substantially the Company covenants same time as sent to take reasonable measures to facilitate such attendance and discussionthe members of the Board; provided that, notwithstanding any other provision of this Section 3.2as a condition to receiving such information, (A) the Board Observer shall have entered into a mutually acceptable, customary confidentiality agreement with the Issuer with respect to all information so provided and agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject bound to the CompanyIssuer’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies policy, in each case to the extent and procedures on the same form required by all Board members; provided, further, that (i) the Issuer reserves the right to withhold any information and shall sign an acknowledgement form stating to exclude the Board Observer from the applicable portion of a meeting if the Board determines, in its sole judgment, that he access to such information or she and it agree to comply with attendance at such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 portion of the Exchange Actmeeting would reasonably be likely to (A) result in a conflict of interest, (B) adversely affect the attorney-client privilege between the Issuer and its counsel or (C) result in a violation of applicable Law and (ii) each party hereto acknowledges and agrees that the Board Observer may be excluded share any information concerning the Issuer and its subsidiaries received by them from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member on behalf of the Board Issuer or its designated representatives with each Holder and its designated affiliates and representatives (x) subject to such Holder’s and such affiliates’ and representatives’ obligation to maintain the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer confidentiality of such materials or any portion thereof, as the case may be, could reasonably be expected information and to result in, based on the advice not misuse such information in contravention of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of ChinaU.S. federal securities laws); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).Exchange Agreement Gogo Inc.
Appears in 1 contract
Sources: Exchange Agreement (Gogo Inc.)
Board Observer. (aA) Priceline In addition to any right to nominate a director in accordance with this Agreement, the Company shall have invite and permit one representative designated by the right, exercisable by delivering notice to the Company, to designate one observer Minority Party to attend any all duly called meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof (whether in the same form and manner as is given to the members of person, telephonically or otherwise) solely in a nonvoting observer capacity (a “Board Observer”) and, in this respect, shall give the Board and the same materials as and when provided to such members (both before or after a meeting, including Observer copies of minutes thereof)all notices, including minutes, consents, and other materials provided other than that the Company provides to its directors in connection with a such meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice subject to the Board Observer limitations set forth below in Section 2.3 and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions enter into an agreement with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood providing that the Board Observer shall not constitute a member of hold in confidence and trust all information provided to him or her or learned by him or her in connection with the Board and shall not be entitled to vote onobserver rights described herein, or consent to, any matters presented except to the Boardextent otherwise required by Applicable Law and any other regulatory process to which the Minority Party is subject. For the avoidance of doubt, subject the Pinnacle Board Observer may share all such information with PEI and its Entity Affiliates.
(B) In addition to the first sentence of any right to nominate directors in accordance with this Section 3.2(b), in the event that any regular or special meeting of the Board is convenedAgreement, the Company shall be deemed invite and permit one representative designated by Harbinger for each director proposed by Pinnacle pursuant to be Section 2.1(b)(ii)(A) to attend all duly called meetings of the Board and any committee thereof (whether in full compliance person, telephonically or otherwise) solely in a nonvoting observer capacity (a “Harbinger Board Observer”) and, in this respect, shall give the Harbinger Board Observer copies of all notices, minutes, consents, and other materials that the Company provides to its directors in connection with the provisions of this Section 3.2(b)such meeting, provided that the Harbinger Board Observer shall enter into an agreement with the Company providing that the Harbinger Board Observer shall hold in confidence and trust all information provided to him or her or learned by him or her in connection with the observer rights described herein, except to the extent otherwise required by Applicable Law and any other regulatory process to which Harbinger is given subject. For the notice in the same form and manner as, and copies avoidance of the same materials as and when provided todoubt, the members of the Harbinger Board Observer may share all such information with Harbinger and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)its Entity Affiliates.
Appears in 1 contract
Sources: Shareholder Agreement (Pinnacle Entertainment Inc.)
Board Observer. (a) Priceline The Investor shall have the right, exercisable by delivering notice to the Company, be entitled to designate one observer a representative (the “Observer”) to attend any Board meetings of in accordance with the Board terms and each committee thereof (the “Board Observer”) for conditions set forth herein so long as (i) Priceline and its Subsidiaries beneficially own the Investor Beneficially Owns at least five percent (5%) of the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions shares of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)Common Stock then outstanding.
(b) The Board Company shall deliver to the Observer, subject to the terms and conditions herein, notice of all meetings of the Board; and the Observer shall be entitled to attend all meetings of the Board in a non-voting, observer capacity, other than any meetings (or portions thereof) where the Board determines in good faith, upon the advice of counsel, (i) to receive notice that the attendance of each the Observer at such meeting (including telephonic meetingsor portion thereof) would adversely affect the attorney-client privilege between the Company and its counsel, (ii) that the exclusion of the Observer from such meeting (or portion thereof) is necessary to protect the Company’s trade secrets, (iii) that the attendance of the Observer at such meeting (or portion thereof) would cause competitive harm, or (iv) that the exclusion of the Observer from such meeting (or a portion thereof) is necessary in order to discuss a Third Party Offer; provided that, in the event the Observer is excluded from any portion of such meeting, the Observer will be allowed to rejoin the remainder of such meeting after the Board ceases its discussions on the matters that gave rise to excluding the Observer pursuant to foregoing clauses (i) through (iv) of this Section 3.1(b). The Company shall deliver to the Board Observer copies of all minutes, consents and any committee thereof in other material that the same form and manner as is given Company provides to the members of the Board Board, except for such minutes, consents and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided material that the Board Observer shall determines in good faith, upon the advice of counsel, (w) would, if delivered to the Observer, adversely affect the attorney-client privilege between the Company and its counsel, (x) should not be restricted provided to the Observer in any confidential communications or discussions with or order to protect the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)Company’s trade secrets, (By) such would cause competitive harm to the Company if provided to the Observer, or (z) concern a Third Party Offer.
(c) All Board meetings shall be duly constituted notwithstanding the absence of the Observer and Priceline for any reason or no reason. No Board meeting shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies delay and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance in breach of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b)its obligations hereunder, provided that the Company has provided notice of such Board meeting to the Observer is given the notice in the same form and manner as, and copies of as notice was provided to the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)directors.
Appears in 1 contract
Board Observer. (a) Priceline The Purchasers shall have the right, exercisable by delivering notice to the Company, be entitled to designate one observer (the “Purchaser Observer”) to the Board of Directors for so long as Purchaser (and its Affiliates) beneficially owns any Common Shares. The Purchaser Observer and the Company shall enter into a customary board observer agreement providing for, among other things, the treatment of confidential information, indemnification, and reimbursement of expenses, reasonably acceptable to the Company and the Purchaser Observer. The Purchaser Observer shall be entitled to attend any and participate, and shall be invited to attend and participate, at the Company’s sole expense, in all meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least of Directors or committees of the Board of Directors (whether such meetings are in person, by telephone, or otherwise) in a non-voting capacity. The Company shall provide the Purchaser Observer Threshold Shareholding copies of all notices, minutes, consents and other materials that it provides to the Board of Directors or any committees of the Board of Directors at the same time and in the same manner as such materials are provided to the Board of Directors and such committees. The Purchaser Observer is a non-voting observer and as such, the Company reserves the right to withhold all or part of any information or exclude access to any meeting or portion thereof if the Company reasonably believes that such withholding or exclusion is reasonably necessary to preserve the attorney-client privilege, to avoid conflicts of interest or for other similar reasons. The Purchasers may not assign the rights set forth in this Section 4.9(h) without the prior written consent of the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) . The Board initial Purchaser Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).
Appears in 1 contract
Board Observer. (a) Priceline Subject to the limitations set forth in this Section 4.08, Purchaser shall have the right, exercisable by delivering notice to the Company, right to designate one (1) individual as an observer to attend any meetings each meeting of the Board and each committee thereof of Directors (the each, an “Board Observer”) for so long in a non-voting capacity, effective as of the Closing. Prior to the consummation of any direct or indirect Change in Control of the Parent, each Observer must be a member of the senior management of the Purchaser, Parent, HNA or of any wholly-owned operating Subsidiary of HNA (i) Priceline and its Subsidiaries beneficially own at least other than any HNA Trading Affiliates). The initial Observer on the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer Closing Date shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies (Qijie Sun - 孙奇杰) (the “Initial Observer”). Following the consummation of any direct or indirect Change in Control of the Parent, each Observer must be (i) a person who was a member of the senior management of the Purchaser or Parent prior to the consummation of such Change in Control of the Purchaser (including the Initial Observer), (ii) a person who is a member of the senior management of HNA or of any wholly-owned operating Subsidiary of HNA (other than any HNA Trading Affiliates) or (iii) any other person who is reasonably acceptable to the Company. Subject to this Section 4.08(a), such Observer shall have the right to receive notice of and procedures the right to attend all meetings of the Board of Directors, and access to all information or written materials available to members of the Board of Directors, at substantially the same time as such notice or access is provided to the Board of Directors. Such Observer shall sign an acknowledgement form stating that he or she and it agree also have the right to comply with receive, promptly after execution, a copy of any written consents in lieu of a meeting executed by the Board of Directors. If the initial Observer is unable to attend any such policies and procedures (it being understood that meeting, the Purchaser shall have the right to designate a substitute Observer upon prior written notice to the Board of Directors. Purchaser shall cause any such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during Observer to treat any “blackout” or similar non-trading period if Confidential Information provided to such purchases are made pursuant to a purchase plan established Observer in accordance with Rule 10b5-1 of Section 4.10 and to enter into a customary confidentiality agreement with the Exchange Act) and (C) Company. Additionally, the Board of Directors may reserve the right, according to its good faith determination, to withhold any information and to exclude any Observer may be excluded from all any meeting or a portion of any meeting or from receiving all or a portion of any materials provided thereof if and to the member of the Board extent, (xi) access to the extent that the presence of the Board Observer such information or attendance at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, in the loss of the attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or any of its Subsidiaries and their respective counsel or the loss of protection of any trade secret, (ii) in the good faith determination of the Board of Directors, such withholding or exclusion is required for the Company or its Subsidiaries to comply with any applicable Law or (iii) appropriate due to any actual or potential conflict of interest between the Company and/or any of its Subsidiaries, on the one hand, and Priceline or the Purchaser and/or its SubsidiariesAffiliates, on the other hand, in the People.
(b) The Company’s Republic of China); it being understood that the Board obligations under this Section 4.08 with respect to any Observer shall not constitute terminate and the Purchaser shall have no designation rights hereunder with respect to such Observer if the Purchaser and its Permitted Transferees, collectively, cease to Beneficially Own the Minimum Ownership Threshold for a member period of at least twenty (20) Business Days after the Company publicly discloses the total number of outstanding shares of the Board Company Common Stock and, based on such total, the Purchaser and shall not be entitled to vote onits Permitted Transferees, or consent tocollectively, any matters presented to no longer Beneficially Own the BoardMinimum Ownership Threshold (such period, the “Ownership Cure Period”). For the avoidance of doubt, subject notwithstanding anything in this Agreement to the first sentence contrary, Third-Party transferees of shares of Company Common Stock shall not have any rights pursuant to this Section 3.2(b), in the event that any regular or special meeting of 4.08.
(c) Nothing herein shall prohibit the Board is convened, the Company shall be deemed of Directors from taking any action proposed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance taken at any such meeting in accordance with this Section 3.2(b)thereof or by written consent.
Appears in 1 contract
Sources: Investment Agreement (Global Eagle Entertainment Inc.)
Board Observer. In the event that, and so long as, REIT is not a Tenant Competitor with respect to any Leased Property (a) Priceline each as defined in the Master Lease Agreements), the REIT shall have the rightright to designate, exercisable by delivering written notice to CEOC from time to time, and CEOC shall invite, one individual (the Company“REIT Observer”) who is reasonably acceptable to the CEOC Board, to designate one observer who complies with Section 1.5, to attend any meetings of the CEOC Board and each committee thereof (committees of the “CEOC Board Observer”) for so long in a non-voting observer capacity as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding provided in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of this Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) 1.2. The Board REIT Observer shall initially be entitled the individual identified as such on Schedule A hereto. CEOC shall provide the REIT Observer with (ia) notice (with a copy to receive notice REIT) of each such meeting (including telephonic meetings) of at the Board same time and any committee thereof in the same form and manner as notice is given provided to the members of the CEOC Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person as applicable, (b) the opportunity to attend (including telephonically or by telephonic conferenceother electronic medium) the portion of any such meetings concerning business and strategy session matters and other matters that would have an adverse material economic impact on REIT, including with regards to matters related to capital expenditures, budgeting, planning, and construction of capital improvements for existing and new casino, gaming, and related facilities (including, without limitation, Capital Expenditures, Capital Improvements and Alterations (as such terms are used in either Master Lease Agreement)) (collectively, the “REIT Entitled Information”), and (c) copies of all notices, minutes, consents, and all other materials and information (financial or otherwise) given to participate fully the CEOC Board or any committee thereof in all discussions among directors of the Board at connection with any such meetings, or any written consents in lieu of such meetings, with such materials to be made available to the REIT Observer in the same manner and at the same time as such materials or information are made available to any member of the CEOC Board or any committee thereof, as applicable. Notwithstanding anything herein to the contrary, the REIT Observer shall not have, or be deemed to have, or otherwise be subject to, any fiduciary duties to CEOC, CEC, or the equityholders of CEOC and CEC, or any fiduciary duties otherwise applicable to the members of the CEOC Board (except if the same are set forth in this Agreement) and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board REIT Observer shall not be restricted personally liable in any confidential communications manner whatsoever by virtue of this Agreement for any debt, liability, or discussions other obligation of CEOC, whether such debt, liability, or other obligation arises in contract, tort, or otherwise, except if such debt, liability, or other obligation arises from the REIT Observer’s fraud, gross negligence, willful misconduct or breach of this Agreement. The REIT Observer and his, her or its agents, representatives and affiliates may engage or invest in, and devote time to, any other business venture or activity of any nature and Case 15-01145 Doc 7467-8 Filed 10/03/17 Entered 10/03/17 19:43:57 Desc Exhibit WW Page 3 of 11 -3- Error! Unknown document property name. description (independently or with others), whether or not such other activity may be deemed or construed to be in competition with CEOC. CEOC shall not have any right by virtue of this Agreement or the confidential provision of information relationship created hereby in or to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and such other representativesventure or activity (or to the income or proceeds derived therefrom), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion pursuit thereof, as even if competitive with the case may bebusiness of CEOC, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled deemed wrongful or improper. Notwithstanding the foregoing, REIT may (but is not required to) waive (for a specified time period or permanently) the exercise of the foregoing right to vote ondesignate a REIT Observer if REIT determines that, as a result of such designation, REIT could fail to qualify as a real estate investment trust under Sections 856-860 of the Internal Revenue Code of 1986, as amended, or consent tofor any other reason, any matters presented and if such right is so waived, CEOC and REIT agree to negotiate in good faith to agree upon an alternative arrangement that fulfills the Board. For the avoidance purpose and intent of doubtthis Section 1.2, subject to the first sentence of any limitations set forth in this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Agreement.
Appears in 1 contract
Sources: Board Observer Agreement
Board Observer. (a) Priceline shall have the right, exercisable by delivering notice With respect to the Company, to designate one observer to attend any meetings of the Board and each committee thereof of Directors of the Borrower:
(a) The Borrower shall invite a person designated by the Lender (the “Board Observer”) for so long as to attend and participate in meetings of the Board of Directors of the Borrower (including any meetings of committees ) in a nonvoting observer capacity; provided, however, that in no event shall the Observer (i) Priceline and its Subsidiaries beneficially own at least be deemed to be a member of the Board Observer Threshold Shareholding in the Companyof Directors, (ii) Priceline and without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Borrower or its Subsidiaries comply in all material respects with the provisions of Section 2.1, stockholders; or (iii) Priceline have the right to propose or offer any motions or resolutions. The Observer shall not have any right to vote on any matter presented to the Board of Directors or any committee thereof. The Borrower shall give the Observer written notice of each meeting of the Board of Directors at the same time and its Subsidiaries comply in the same manner as the members of the Board of Directors, shall provide the Observer with all material respects with written materials and other information given to members of the provisions Board of Section 3.1(aDirectors at the same time such materials and information are given to such members (provided, however, that the Observer shall not be provided nor have access to any confidential supervisory information) and (iv) shall cause or, to the Marketing Agreement extent such an obligation is unenforceable, use its reasonable best efforts to cause the Observer to be permitted to attend as an observer at all meetings thereof, and in full force the event the Borrower proposes to take any action by written consent in lieu of a meeting, the Borrower shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and effect substance of such action and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with including the provisions thereof (the “Board Observer Right”)proposed text of such written consents.
(b) The Board Observer shall be entitled (i) to receive notice advancement of each meeting (including telephonic meetings) expenses and rights to indemnification from the Borrower to the same extent provided by the Borrower to its directors under the Borrower’s organizational documents as in effect on the date hereof. The Borrower acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses constitute third-party rights extended to the Observer by the Borrower and do not constitute rights to indemnification or advancement of expenses as a result of the Board and any committee thereof in the same form and manner Observer serving as is given to the members a director, officer, employee or agent of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Borrower. The Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall will agree to hold in confidence and trust all information so provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar enter into a non-trading period disclosure agreement in customary form if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of requested by the Exchange Act) Borrower. The Borrower may withhold any information and (C) exclude the Board Observer may be excluded from all or a portion of any meeting or from receiving all portion thereof if access to such information or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer attendance at such meeting or any portion thereof or could adversely affect the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or Borrower and its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)legal counsel.
Appears in 1 contract
Board Observer. (a) Priceline The Company agrees that, from and after any such time as the number of shares of Common Stock (including exercised Warrant Shares) held by NV Holdings, Amazon, and any of their respective Affiliates, equal at least 12,338,485 shares of Common Stock (the “Observer Threshold”), Amazon shall have the right, exercisable by delivering notice to but not the Companyobligation, to designate one observer an individual (any such individual, the “Amazon Observer”) to attend any all meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companya non-voting, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1observer capacity, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board which Amazon Observer shall be entitled approved by the Company (i) such approval not to receive be unreasonably withheld, conditioned, or delayed), provided, however, that no approval by the Company will be required if the Amazon Observer is an employee of Amazon or any of its Affiliates, in which case Amazon shall notify the Company of the identity of the Amazon Observer at least fourteen days before the first meeting to be attended by such Amazon Observer in that role. In this respect, the Company shall provide to the Amazon Observer notice of each meeting (including telephonic meetings) such meetings and, subject to Section 5.1(c), a copy of the Board and any committee thereof in meeting materials at the same form and manner time as is given provided to the members of the Board in their capacity as such, and shall provide the Amazon Observer with the same materials as rights to expense reimbursement that it provides to independent members of the Board. The Company acknowledges and when provided to such members (both before agrees that the Amazon Observer will not owe any fiduciary duties or after a meetingany other similar obligations or duties, including copies of minutes thereof)in law or equity, including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries subsidiaries or its stockholders, and may act at all times in the best interests of NV Holdings, Amazon, and any of their respective Affiliates.
(b) Notwithstanding the above, or (y) the Amazon Observer shall not be entitled to attend and otherwise participate in, and shall, to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline applicable, waive notice of and recuse themselves from, such meetings or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiariesportions thereof, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote onreceive any information, in each case (i) to the extent relating to Amazon, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby, (ii) to the extent such information involves company pricing data or competitively sensitive information, in each case, about specific Company customers, (iii) if the Company believes based on the good faith written advice of outside counsel that providing such information would violate Applicable Law (in which case the Company shall notify Amazon of such belief and the Company and Amazon shall consult and cooperate in good faith in determining whether the Company is legally prohibited from providing such information to the Amazon Observer), or consent to(iv) where the Company determines based upon good faith written advice from outside counsel that providing such information (A) would reasonably be expected to jeopardize an attorney-client privilege or cause a loss of attorney work product protection or (B) would violate a contractual confidentiality obligation to any third party; provided, any matters presented that, with respect to clauses (ii) through (iv), the Board. For Company uses reasonable best efforts and cooperates in good faith with the avoidance of doubt, subject Amazon Observer to develop and implement reasonable alternative arrangements to provide the first sentence Amazon Observer with the intended benefits of this Section 3.2(b3.4.
(c) The Company shall at all times provide or otherwise make available to the Amazon Observer, if applicable (in his or her capacity as such), the same rights to indemnification and exculpation that it provides to members of the Board (including with respect to derivative claims). The Company acknowledges and agrees that any such obligations to indemnify or advance expenses to such Amazon Observer in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Amazon Observer in connection therewith, and any obligation on the part of any Amazon Indemnitor under any Amazon Indemnification Agreement to indemnify or advance expenses to such Amazon Observer shall be secondary to the Company’s obligation. In the event that there are Unpaid Indemnitee Amounts with respect to the Amazon Observer, and any regular Amazon Indemnitor makes any payment to such Amazon Observer in respect of indemnification or special meeting advancement of expenses under any Amazon Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Amazon Indemnitor shall be subrogated to the rights of such Amazon Observer under this Agreement in respect of such Unpaid Indemnitee Amounts.
(d) Promptly upon the occurrence of NV Holdings, Amazon, and any of their respective Affiliates holding Warrant Shares and vested Warrant Shares subject to exercise pursuant to the Warrant less than the Observer Threshold, all obligations of the Board is convenedCompany with respect to, and all rights of, Amazon and the Company shall be deemed Amazon Observer pursuant to be in full compliance with the provisions of this Section 3.2(b)3.4 (other than rights to indemnification, provided that the Board Observer is given the notice in the same form advancement and manner asreimbursement of expenses and subrogation) shall terminate and, and copies unless otherwise consented to by a majority of the same materials as and when provided to, the members of the Board and Board, Amazon shall cause the Company takes reasonable measures Amazon Observer to facilitate cease attending meetings of the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Board.
Appears in 1 contract
Board Observer. (aA Board Representative appointed pursuant to Section 1(a)(i)(B) Priceline or 1(a)(ii) shall have the rightright to present matters for consideration by the Board and to speak on matters presented by others at such meetings of the Board. Subject to the confidentiality provisions of this Section 3 and any applicable related person, exercisable by delivering notice to recusal or similar policy or practice of the Company, to designate one observer to attend any meetings of the Company shall cause the Board Representative to be provided with all communications and each committee thereof (materials that are provided by the “Board Observer”) for so long as (i) Priceline and Company or its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given consultants to the members of the Board and generally, at the same time and in the same manner that such communications and materials as and when are provided to such members (both before or after a meetingmembers, including copies all notices, board packages, reports, presentations, minutes and consents. The Board Representative shall be entitled to meet and consult with the senior executive management team of minutes thereof)the Company on a quarterly basis to discuss the quarterly and annual business plans of the Company and the Company’s subsidiaries and to review the progress of the Company and the Company’s subsidiaries in achieving their plans. In addition, including materials provided other than in connection upon request to the chief executive officer of the Company, the members of the senior executive management team of the Company shall make themselves available during normal business hours to meet with a meetingthe Board Representative on an interim basis, as the Board Representative may reasonably request from time to time, and neither as would not unreasonably interfere with the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy duties of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors members of the Board at such meetings, and senior executive management team of the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding Company. Notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject 3 to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofcontrary, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of have the right to keep confidential from the Board and shall not be entitled to vote on, Representative for such period of time as the Company or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, deems reasonable any information and copies of written materials the same materials as and when provided toCompany is required by law or agreement with a third party to keep confidential. As a condition of the exercise of his or her rights under this Section 3, the members of the Board and Representative shall enter into such agreements or undertakings with the Company takes reasonable measures to facilitate maintain the Board Observer’s attendance at any confidentiality of information provided to them in connection with the exercise of such meeting in accordance with this Section 3.2(b)rights as the Company may reasonably request.
Appears in 1 contract
Sources: Shareholders Agreement (Artio Global Investors Inc.)
Board Observer. (a) Priceline shall have the right5.1 The Issuer agrees and undertakes that, exercisable by delivering notice to the Company, to designate one observer to attend any meetings as of the Board Closing Date until such time as the Subscriber is the beneficial holder of less than 5% of the issued and each committee thereof outstanding common shares in the capital of the Issuer (the “Board Observer Threshold”), the Subscriber shall be entitled to appoint one observer (the “Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least to the Board Observer Threshold Shareholding in board of directors of the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof Issuer (the “Board Observer RightBoard”).
(b) The Board Observer , which observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) and attend all meetings of the Board Board, but not to vote thereat, and any committee thereof in to receive all information and materials provided by the same form and manner as is given Issuer to the members of the Board and from time to time, as well as such further information as the same materials as and when provided Observer may reasonably request in order to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection ensure compliance by the Issuer with a meeting, and neither its various obligations towards the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Subscriber. The Observer shall agree to hold in confidence and trust all information received and shall act in a fiduciary manner with respect to all information so provided (provided in the same manner as if the Observer were a director of the Issuer, except that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of entitled to disclose such information to Priceline the Subscriber. Each Observer who has not already done so shall upon written request of the Issuer deliver, in a form acceptable to the Issuer, acting reasonably, a legal, valid, and enforceable document whereby such person agrees to be bound by, and comply with, the terms of the provisions of this Agreement that apply to the Observer. Moreover, the Observer shall be the beneficiary of an indemnification agreement to be entered in its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board favour into between the Observer and Priceline the Issuer.
5.2 Upon the Investor ceasing to satisfy the Observer Threshold, the Subscriber shall be subject to notify the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with Issuer of such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 fact and, at the option of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counselIssuer, the loss of attorney-client privilege in relation to Subscriber will cause the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter Observer to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiariesremoved, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member right of the Board Subscriber to appoint an observer as contemplated by Section 5.1 shall be reinstated each time that the Subscriber is once again the beneficial holder of at least 5% of the issued and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), outstanding common shares in the event that any regular or special meeting capital of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Issuer.
Appears in 1 contract
Board Observer. (a) Priceline So long as GS Mezz III Offshore holds Mezzanine Notes with an aggregate outstanding principal amount of at least $50,000,000.00, GSMP III VCOC shall have the right, exercisable by delivering notice to the Company, right to designate one observer to attend any meetings an employee of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline Sachs Group, Inc. or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar as a non-trading period if such purchases are made pursuant to voting observer (a purchase plan established in accordance with Rule 10b5“Non-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (xVoting Observer”) to the Buyer Board or the Company Board and, to the extent that the presence an executive or similar committee effectively functions as a board, each such committee of the Buyer Board or the Company Board, as the case may be (each a “Committee”); provided such Non-Voting Observer at such will not have or represent an interest that conflicts with the interests of Buyer or the Company. The Non-Voting Observer attending a meeting of Buyer Board or the Company Board, as the case may be (or any portion thereof applicable Committee thereof) shall be entitled to reimbursement from Buyer and the Company for his or her reasonable travel or other out-of-pocket expenses related to the performance of his or her duties.
(b) So long as GSMP III VCOC shall be entitled to exercise its rights pursuant to this Section 2.4, each of Buyer and the Company shall hold regular meetings of Buyer Board or the receipt by the Board Observer of such materials or any portion thereofCompany Board, as the case may be, could reasonably be expected to result inno less frequently than quarterly. Within a reasonable time after each such meeting, based on either telephonically or in person, of a Buyer Board or the advice of Company Board, as the Company’s external counselcase may be, the loss of attorney-client privilege in relation to Buyer or the Company, its Subsidiaries or its Affiliatesas applicable, or (y) shall cause minutes of such meeting to be delivered to the extent the subject matter Non-Voting Observer.
(c) The Non-Voting Observer shall be entitled to be discussed present at all meetings of the meeting concerns (1) the Company’s rights under agreements with Priceline Buyer Board or its Subsidiaries or (2) matters related to business competition between the Company or its SubsidiariesBoard, on as the one handcase may be (and any applicable Committee) and shall be notified of any such meeting by prior notice, including such meeting’s time and Priceline or its Subsidiaries, on the other handplace, in the People’s Republic same manner as directors of ChinaBuyer or the Company, as the case may be, and shall receive copies of all written materials distributed to directors of Buyer or the Company, as the case may be, for purposes of such meetings at the same time as directors of Buyer or the Company, as the case may be, and shall be entitled to participate in discussions and consult with, and make proposals and furnish advice to, the Buyer Board or the Company Board, as the case may be (and any applicable Committee), without voting; provided, however, that such Non-Voting Observer shall not have voting rights with respect to actions taken or elected not to be taken by the Buyer Board or the Company Board, as the case may be, or any Committee and shall be subject to all rules governing the Buyer Board or the Company Board, as the case may be and Committee, it being understood that neither the Buyer Board nor the Company Board shall be under any obligation to take any action with respect to any proposals made or advice furnished by the Non-Voting Observer, and nothing herein shall prevent the Buyer Board or the Company Board, as the case may be (and any applicable Committee), acting by written instrument to the extent permitted by applicable law. The Non-Voting Observer shall not constitute have a member duty of the Board and shall not be entitled confidentiality to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board Buyer and the Company takes reasonable measures comparable to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)duty of confidentiality of a director of Buyer and the Company.
Appears in 1 contract
Sources: Shareholder Agreement (LPL Investment Holdings Inc.)
Board Observer. (a) Priceline For so long as the Stockholders (x) Beneficially Own, in the aggregate, at least two-thirds (2/3) of the Initial Shares and (y) do not have a Director Designation Right, (i) the Stockholders shall have the rightright to (A) appoint one (1) non-voting representative (the “Observer”) to attend (at the Observer’s option, exercisable by delivering in person or via remote access, including telephonically) all meetings of the Board (and all committees thereof on which independent directors of the Company serve (collectively, the “Independent Committees”)), (B) change the Observer so appointed at any time upon written notice to the CompanyCompany and (C) upon the resignation, removal or replacement of the Observer for any reason, to designate one observer appoint another Observer and (ii) the Company shall provide the Observer with copies of all notices, consents, resolutions, minutes or other written materials provided or made available to the Board (or to any Independent Committee) as set forth in the Board Agreement. The Stockholders shall cease to have any right or entitlement to appoint an Observer from and after the first instance in which the Stockholders cease to Beneficially Own, in the aggregate, at least two-thirds (2/3) of the Initial Shares. 12
(b) Prior to the right of the Observer to attend any meeting of the Board (or any Independent Committee) or receive the information contemplated in Section 4.01(a)(ii), the Observer shall execute and deliver to the Company a Board Agreement.
(c) Notwithstanding anything to the contrary in this Agreement or the Board Agreement, the Company may exclude such Observer from access to any portions of materials or attendance at any portion of any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and or any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (xIndependent Committee) to the extent that the presence of the Board Observer at such meeting (i) access or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could attendance would reasonably be expected to result in, based on jeopardize the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to of the Company, any of its Subsidiaries Affiliates or the Ares Funds, (ii) access or attendance would reasonably be expected to violate any confidentiality obligation owed to any unaffiliated third party by the Company, any of its AffiliatesAffiliates or the Ares Funds, (iii) materials or meetings relates to (y) to the extent the subject matter to be discussed at the meeting concerns (1A) the Company’s rights under agreements ’s, the Ares Funds’ or any of their respective Affiliates’ relationship, contractual or otherwise, with Priceline any of the Stockholders or its Subsidiaries any of their respective Affiliates or (2B) matters related to business competition any actual or potential transactions between or involving the Company Company, the Ares Funds or its Subsidiariesany of their respective Affiliates, on the one hand, and Priceline any of the Stockholders or its Subsidiariesany of their respective Affiliates, on the other hand, in or (iv) such exclusion is necessary to avoid an actual or reasonably likely conflict of interest. Notwithstanding the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convenedforegoing, the Company shall use commercially reasonable efforts to make other arrangements (including redacting information or making substitute disclosure arrangements) that would enable disclosure to the Observer to occur without (A) in the case of the foregoing clause (i), jeopardizing such privilege, (B) in the case of the foregoing clause (ii), violating such confidentiality obligations, or (C) in the case of the foregoing clause (iv), creating an actual or reasonably likely conflict of interest.
(d) Notwithstanding anything in this Agreement to the contrary, the Observer must be deemed reasonably acceptable to the Company and may not be a Person who (i) has been removed for cause from the Board, (ii) has ever been convicted of a felony or equivalent crime (which conviction was not subsequently overturned) under the laws of any jurisdiction, (iii) is or has been subject to any permanent injunction on serving on the board of directors (or similar governing body) of publicly listed companies in the United States for violation of any United States federal or state securities law, (iv) has been determined by any governmental or quasi-governmental agency or authority of competent jurisdiction, or is reasonably likely pursuant to applicable law, regulation or listing authority rules, to be in full compliance with ineligible to serve on a board of directors (or similar governing body) of publicly listed companies or (v) is employed by, is engaged as a consultant for, or serves as a director (or similar position) for, any competitor of the provisions of this Section 3.2(b), provided Company. The Company acknowledges that the Board individual identified by the Investor in writing as the Observer is given the notice in the same form and manner as, and copies as of the same materials as and when provided to, the members date of the Board and Purchase Agreement is acceptable to the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Company.
Appears in 1 contract
Board Observer. Each Loan Party shall give Lenders notice of (a) Priceline shall have in the rightsame manner as notice is given to directors), exercisable and permit one person designated by delivering notice to the Company, to designate one observer each Lender to attend any as a non-voting observer (each such observer, an “Observer”), all meetings of its Board of Directors and all executive and other committee meetings of its Board of Directors and shall provide to Lenders the Board same information concerning the Loan Parties and each committee thereof their Subsidiaries, and access thereto, provided to members of the Loan Parties’ respective Boards of Directors and such committees, as applicable (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer RightMaterials”).
(b) . The Board reasonable travel expenses incurred by any Observer in attending any board or committee meetings shall be entitled (i) reimbursed by the Loan Parties; provided, that no Loan Party will be required to receive notice permit any Observer to attend, as an observer, any meeting of each meeting (including telephonic meetings) its Board of the Board and Directors or any committee thereof in the same form and manner as is given or provide any Board Materials to any Observer unless such Observer has executed a confidentiality agreement satisfactory to the members of the Board and the same materials as and when provided to Lender appointing such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either such Loan Party in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer reasonable determinations. The Observers may be excluded from all or a portion of any meeting (or from receiving all portion thereof) or a denied access to any Board Materials (or portion of any materials provided to the member of the Board (xthereof) if and to the extent that the presence of the Board Observer (a) access to such information or attendance at such meeting or any portion thereof would adversely affect any attorney-client privilege, (b) access to such information or the receipt by the Board Observer of attendance at such materials meeting or any portion thereof, as the case may be, thereof could reasonably be expected to result in, based on the advice in disclosure of the Company’s external counsel, the loss trade secrets or a conflict of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliatesinterest, or (yc) to any of the extent Lenders, the Loan Documents, the lenders of the First Lien Indebtedness or the First Lien Credit Documents are the subject matter to be discussed of such information or are under discussion at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood such meeting. The Lenders agree that the all Board Observer Materials shall not constitute a member of the Board remain confidential and shall not be entitled voluntarily disclosed to vote onany other Person, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall except as may be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)required by Law.
Appears in 1 contract
Sources: Securities Purchase Agreement and Security Agreement (Fusion Telecommunications International Inc)
Board Observer. (a) Priceline Each of Solus and Ascribe shall have the right, exercisable by delivering notice to the Company, right to designate one non-voting observer to attend any meetings of the Board and each committee thereof (the each, a “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own Holder Ownership Percentage is at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)5%.
(b) The Subject to the provisions of this Section 2.1.8, each Board Observer shall be entitled (i) have right to receive notice of each meeting attend all meetings (including telephonic meetingstelephonically) of the Board, and the Company shall give the Board Observer copies of all notices, minutes, consents and other materials that it provides to the directors of the Board, it being understood that the rights of the Board Observer to receive such notices or materials or to attend such meetings shall be conditional upon the Company, the Board Observer and Solus and Ascribe, as applicable, entering into a customary confidentiality and restriction on usage agreement in form and substance mutually acceptable to the Board and such Board Observer.
(c) Notwithstanding the foregoing, the Company reserves the right to withhold any committee information and to exclude the Board Observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel, serve to waive the work product doctrine or any other similarly protective privilege or doctrine, or result in disclosure of trade secrets or a conflict of interest, in each case upon the same form and manner as is given to affirmative vote of a majority of the members of the Board and the same materials as and when provided to not affiliated with such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either acting in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, good faith.
(Ad) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that Neither the presence of the Board Observer at such all or at any part of a meeting or any portion thereof or of the receipt by Board, nor the disclosure to the Board Observer of such materials or any portion thereofconfidential information, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that shall provide the Board Observer shall not constitute or its Holder with a member of right to require the Company to disclose publicly any information acquired by such Board and shall not be entitled to vote on, or consent to, any matters presented to Observer in the Board. capacity as such.
(e) For the avoidance of doubt, subject the Board Observer shall not be permitted to the first sentence of this Section 3.2(b), in the event that vote at any regular or special meeting of the Board or be counted for purposes of determining whether there is convened, a sufficient quorum for the Board to conduct its business. The Board Observer shall be reimbursed by the Company upon written request (including submission of reasonable documentation) for any reasonable out-of-pocket travel and other reasonable out-of-pocket expenses incurred in order to attend Board meetings.
(f) Each Board Observer shall cease to have any rights hereunder automatically on the date that the Holder appointing such Board Observer no longer has the right to designate a Board Observer pursuant to this Agreement. A person’s rights as a Board Observer may be deemed terminated at any time by the Holder entitled to be in full compliance with designate such Board Observer by delivering written notice of such termination to the provisions of this Section 3.2(b), provided that Board.
(g) The Company shall make reasonable best efforts to include the Board Observer is given the notice in the same form as an insured party under any of its directors and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)officers liability insurance policies.
Appears in 1 contract
Sources: Stockholders Agreement
Board Observer. (ai) Priceline From the date of this Agreement and for so long as no Resignation Event has occurred, the Investors shall have the right, exercisable by delivering notice to the Company, right to designate one (1) person (the “Observer”) to serve as an observer at meetings of the Company’s board of directors (the “Board”) and at meetings of the Governance and Nominating Committee of the Board (the “Nominating Committee”). Any Observer shall meet the Independence Criteria described in clause (vi) below and shall be designated by the “Investor Representative” who shall be ▇▇▇ ▇▇▇▇▇▇ or any replacement thereof approved by BJ’s Act III. Notwithstanding anything in this Agreement to the contrary, the Investor Representative shall not have a right to designate a person to serve as an Observer or have any Observer attend any meetings of the Board and each committee thereof (the “Board Observer”) or Nominating Committee for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or Suggested Nominee shall be serving as a portion of any materials provided to the member of the Board (xin either case, such member of the Board, an “Investor Approved Board Member”); provided, however, that if an Investor Approved Board Member is serving on the Board but not on the Nominating Committee, the Investor Approved Board Member shall have the right to serve as an Observer with respect to meetings of the Nominating Committee.
(ii) The Company agrees that it will invite the Observer to attend, in a non-voting observer capacity, all meetings of the Board and the Nominating Committee for the purposes of permitting the Observer to have current information with respect to the affairs of the Company and actions taken by the Board or the Nominating Committee. The Observer shall have the right to be heard at any such meetings, but in no event shall the Observer: (1) be deemed to be a member of the Board or the Nominating Committee; or (2) have the right to vote on any matter under consideration by the Board or the Nominating Committee or otherwise have any power to cause the Company to take, or not to take, any action. As a non-voting observer, the Observer will also be provided (concurrently with delivery to the directors of the Company and members of the Nominating Committee and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials and information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of a meeting of the Board or the Nominating Committee (except to the extent that the presence Observer has been excluded therefrom pursuant to clause (iv) below).
(iii) If a meeting of the Board or the Nominating Committee is conducted via telephone or other electronic medium (e.g., videoconference), the Observer at may attend such meeting via the same medium; provided, however, that Observer shall not knowingly provide any other person access to such meeting without the Company’s express written consent and, provided further, that inadvertent access by another person which is promptly remedied upon discovery by the Observer shall not be deemed to breach the provisions of this Section 1(a)(iii).
(iv) Notwithstanding the foregoing, the Company may exclude the Observer from access to any material or any meeting or portion thereof if the Board or the receipt by Nominating Committee determines it is necessary to do so in its reasonable discretion.
(v) good faith (which determination may be made without participation of the Board Observer of such materials or any portion thereofObserver), as the case may be, could reasonably be expected to result in, based on the upon advice of the Company’s external counsel, that (1) such exclusion is reasonably necessary to preserve the loss of attorney-client privilege in relation between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the Company, its Subsidiaries material or its Affiliates, or (y) to the extent the subject matter to be discussed at such portion of the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries which would be required to preserve such privilege and not to any other portion thereof, or (2) matters related such portion of a meeting is an executive session limited solely to business competition between independent director members of the Company or its SubsidiariesBoard, on independent auditors and/or legal counsel, as the one handBoard may designate, and Priceline or its Subsidiaries, on the other hand, in Observer (assuming the People’s Republic of China); it being understood that the Board Observer shall not constitute were a member of the Board for such determination) would not meet the then-applicable standards for independence adopted by the Securities Exchange Commission, the Nasdaq Stock Market or such other exchange on which the Company’s securities are then traded.
(vi) The Company shall compensate the Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if the Observer were an independent member of the Board and a member of the Nominating Committee, as such cash compensation may be modified from time to time; provided, however, in no event shall not the Observer be entitled to vote on, or consent to, any matters presented compensation with respect to any period for which an Investor Approved Board Member has received compensation as an independent member of the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convenedFurther, the Company shall be deemed reimburse the Observer for all reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at Board and Nominating Committee meetings. All compensation and reimbursements payable by the Company pursuant to be in full compliance with the provisions of this Section 3.2(b), provided that 1(a)(v) shall be paid to the Board Observer is given the notice in at the same form and manner as, and copies of the same materials time as and when provided to, comparable compensation or reimbursement is paid to the members of the Board Board.
(vii) Any Observer shall (a) have business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (b) be reasonably acceptable to the Nominating Committee and the Company takes reasonable measures Board, (c) qualify as “independent” pursuant to facilitate Nasdaq Stock Market listing standards (or the Board standards of such other exchange on which the Company’s securities are then traded) and satisfy any other criteria applicable to “independent” directors under such listing standards and under applicable law and the rules and regulations of the Securities and Exchange Commission, (d) have provided the items that would be required of an independent director pursuant the Company’s normal director intake procedures (including completion of a standard director and officer questionnaire and completion of a background check), and (e) not serve as a director or officer of any company that owns, operates or franchises casual dining restaurants; provided that, for purposes of clause (e), such casual dining restaurants shall not include any fine dining restaurants, any fast casual restaurants or any casual dining restaurants with fewer than 25 locations and shall not include serving as a director or officer of Trust LLC, BJ’s Act III or Act III Holdings, LLC or any of its Subsidiaries (clauses (a)-(e), the “Independence Criteria”).
(viii) Within ten (10) business days of his or her name being submitted to the Nominating Committee, the Nominating Committee shall determine whether a proposed Observer meets the Independence Criteria, and shall promptly notify the Investor Representative of its decision. In the event the Nominating Committee does not accept a proposed Observer’s attendance , the Investors shall have the right to recommend a substitute Observer whose appointment shall be subject to the procedures described above.
(ix) If any Observer is unable or unwilling to serve as an observer, resigns as an observer, is removed as an observer, or for any other reason fails to serve or is not serving as an observer at any time prior to the occurrence of a Resignation Event, the Investor Representative shall have the right to designate a person to be a replacement Observer (any such meeting replacement Observer shall be referred to as a “Replacement Observer”). Any Replacement Observer will be considered and approved or rejected in accordance with this the process specified in Section 3.2(b1(a)(vii).
Appears in 1 contract
Board Observer. Commencing on the Forbearance Effective Date (as defined in the Forbearance Agreement), each Loan Party shall allow (i) one (1) non-voting representative designated by the Administrative Agent (such representative, the “Attending Observer”) to attend either in person or telephonically, in the capacity of an observer and not a member, all meetings and all calls of the board of directors, board of managers or similar governing body of each of the Loan Parties, including all committees and sub-committees thereof (each, a “Governing Body”), and (ii) one (1) non-voting representative designated by each Lender (each such representative, a “Call-In Observer”, and the Call-In Observers and the Attending Observer, collectively, the “Observers”) to attend telephonically, in the capacity of an observer and not a member, all meetings and all calls of each Governing Body. Each Loan Party shall (a) Priceline shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and give each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive prior written notice of all such meetings and calls of each meeting (including telephonic meetings) of the Board and any committee thereof in Governing Body at the same form and manner time as notice is given furnished to the members of the Board and the same materials as and when provided applicable Governing Body, but, in any event, no later than forty eight (48) hours prior to such meeting or call, (b) provide each Observer with all notices, documents and information furnished to the members (both before or after a meeting, including copies of minutes thereof), including materials provided other than the Governing Body in connection with a meetingeach such meeting or call, and neither the Board nor any committee thereof shall conduct any business whether at or in anticipation of such meeting or call, an action by written consent without giving or otherwise, at the same time as such prior notice materials are furnished to the Board Observer and a copy members of the proposed consentapplicable Governing Body, any exhibits, annexes or schedules thereto and any related materials and (iic) provide to each Observer copies of the minutes and resolutions of all such meetings and calls at the Board Observer’s discretion, same time as such minutes and resolutions are furnished to attend each Board meeting or the members of the applicable Governing Body. Presence of any Observer in a meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer a Governing Body shall not be restricted considered in determining a quorum for any confidential communications meeting of such Governing Body or discussions for any other purpose in connection with the validity or the confidential provision otherwise of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) any action taken by such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 Governing Body. A majority of the Exchange Act) and (C) members of the Board applicable Governing Body may exclude any Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may beor from receiving any materials if, could reasonably be expected it believes that (i) such exclusion is necessary to result in, based on the advice of the Company’s external counsel, the loss of preserve attorney-client privilege in relation or confidentiality or (ii) there exists, with respect to any such meeting or materials, an actual or potential conflict of interest between Holdings or the Governing Body, and the Administrative Agent, the Lenders or their affiliates or such Observer (including as to discussion or materials regarding the Term Loans or any Loan Documents). The Loan Parties hereby consent to the Companydisclosure by an Observer to the Administrative Agent or any Lender, and the disclosure by the Administrative Agent to each of the Lenders, of all materials and other information received by an Observer in his or her capacity an Observer or otherwise pursuant to, or in connection with, this Section 6.21 subject to the confidentiality provisions of the Credit Agreement. The Loan Parties will pay, or will cause one of its Subsidiaries to pay, the reasonable out-of-pocket costs and expenses incurred by an Observer in the course of his or its Affiliatesher service hereunder, including in connection with attending regular and special meetings of a Governing Body, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or any of its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other handcommittees, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubteach case, subject to the first sentence Loan Parties’ policies and procedures with respect thereto (including the requirement of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(bdocumentation thereof).”
Appears in 1 contract
Sources: Forbearance Agreement and Amendment to Credit Agreement (Hydrofarm Holdings Group, Inc.)
Board Observer. Subject to the other terms and conditions of this Agreement, at any time after the Closing, provided that (a) Priceline the Investor Threshold Ownership Requirement is satisfied and (b) there has been no Material Breach by the Investor, the Investor shall have the right, exercisable by delivering notice to the Company, to designate one non-voting observer (the “Board Observer”) to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Designation Right”).
(b) . The Board Observer shall be entitled to (ix) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct prior to conducting any business by written consent without giving resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (iiy) at the Board Observer’s discretion, to attend each Board meeting or meeting in the same manner as given to the members of any committee thereof, either in person or by telephonic conference, the Board and to participate fully in all discussions among directors of the Board at such meetingsmeeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided provided, that, notwithstanding any other provision of this Section 3.22.1, (Ai) the Board Observer shall agree agree, and the Investor shall cause the Board Observer, to hold in confidence all such information and materials provided to the Board Observer and all matters discussed at meetings of the Board in which the Board Observer participates (collectively, “Board Information”) (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information Board Information, on a need-to-know basis, to Priceline the Investor or its Affiliates (other than Ping An Life Insurance Company of China, Ltd. and its Subsidiaries subsidiaries) and their respective directors, officers, employees, accountants, agents, counsel and other representatives), ) and (Bii) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period as if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or were a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice Director of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the . The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, on or be required to consent to, to any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given Designation Right shall be exclusive to the notice in Investor and shall not be transferable from the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures Investor to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)third party.
Appears in 1 contract
Board Observer. (a) Priceline The Issuer shall have the right, exercisable by delivering notice to the Company, to designate allow one observer to attend any meetings of the Board and each committee thereof representative (the a “Board Observer”) for so long jointly designated by Sankaty Advisors LLC (“Sankaty Advisors” and together with its Affiliates, “Sankaty”) and Falcon Strategic Partners III, LP (“Falcon Partners” and together with its Affiliates, “Falcon”) to attend and participate in all meetings and other activities of the governing body (each governing body referred to herein as a “Board of Directors” and its members referred to as “Directors”) of Issuer and each of its Subsidiaries, including all committees and sub-committees thereof ; provided that such Board Observer shall have no voting rights. The Issuer shall (i) Priceline give Sankaty Advisors and its Subsidiaries beneficially own Falcon Partners notice of all such meetings, at least the same time as furnished to the directors, managers, or partners, as applicable, of the applicable Board Observer Threshold Shareholding in the Companyof Directors, (ii) Priceline provide to the Board Observer, whether at or in anticipation of a meeting, an action by written consent or otherwise, all notices, documents and its Subsidiaries comply in all material respects with information furnished to the provisions of Section 2.1Directors at the same time furnished to such Directors, (iii) Priceline notify Sankaty Advisors and its Subsidiaries comply in Falcon Partners of, and permit the Board Observer to participate by telephone in, all material respects with the provisions emergency meetings of Section 3.1(a) each Board of Directors and all committees and sub-committees thereof, (iv) provide the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)with copies of the minutes of all such meetings at the time such minutes are furnished to the Directors and all committees and sub-committees thereof, (v) cause regularly-scheduled meetings of the Board of Directors of the Issuer to be held no less frequently than quarterly with at least one such meeting in each Fiscal Year to be held in person and (vi) reimburse Sankaty and Falcon for all reasonable out of pocket expenses incurred by the Board Observer in connection with such person’s attendance at any meetings of each Board of Directors and all committees and sub-committees thereof.
(b) The Notwithstanding the foregoing, if at any time Sankaty or Falcon shall hold less than 25% of the aggregate principal amount of the Notes and Senior Subordinated Notes it held on the Closing Date, such party shall no longer have the right to designate a Board Observer but the other party shall retain such right so long as it holds 25% or more of the aggregate principal amount of the Notes and Senior Subordinated Notes it held on the Closing Date. The rights provided in this Section 7.12 shall in no event be transferable by the Purchasers to any other party.
(c) Notwithstanding the foregoing, Issuer and any applicable Subsidiary, reserves the right upon the advice of Issuer’s legal counsel to (i) withhold portions of information from the Board Observer, in its capacity as such and/or (ii) exclude the Board Observer from portions of any meeting if access to such information or attendance at such meeting by the Board Observer would require restriction due to confidentiality or conflict of interest concerns, or if access to such information or attendance at such meeting by the Board Observer would adversely affect the attorney-client privilege between Issuer, and any applicable Subsidiary, and its legal counsel.
(d) If, at any time Falcon shall hold less than 25% of the aggregate principal amount of the Notes and the Senior Subordinated Notes it held on the Closing Date, and Sankaty shall hold then more than 25% of the aggregate principal amount of the Notes and Senior Subordinated Notes it held on the Closing Date, then (i) Sankaty shall be entitled (i) to receive notice designate either one director of each meeting (including telephonic meetingsthe Board of Directors of the Issuer pursuant to Article II Section 3(c) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before Issuer’s bylaws or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the one Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials pursuant to this Section 7.12 and (ii) at Falcon shall, in accordance with and subject to the terms of the Series E Preferred Stock Purchase Agreement dated as of the date hereof by and among Falcon and the other parties thereto, be entitled to appoint an observer to the Board Observer’s discretionof Directors. At any other time, for the avoidance of doubt and notwithstanding anything in the organizational documents of Issuer or any shareholder or other agreement among equity holders of Issuer, Sankaty and Falcon shall not collectively have the right to attend each more than one Board meeting or meeting of any committee thereof, either in person or by telephonic conference, Observer and to participate fully in all discussions among directors one director of the Board at such meetingsof Directors of Issuer. Notwithstanding anything to the contrary contained in this Section 7.12, and the Company covenants Board Observer rights granted pursuant to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision the first paragraph of this Section 3.2, (A) 7.12 are not intended to supplement the Board Observer shall agree to hold rights provided for in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) Senior Subordinated Documents to the extent the subject matter to be discussed at Senior Subordinated Documents remain outstanding. To the meeting concerns (1) extent the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between obligations and commitments thereunder have been terminated and the Company or its SubsidiariesSenior Subordinated Documents are no longer in existence, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the all Board Observer rights shall not constitute a member of the Board and shall not be entitled exercised pursuant to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)7.12.
Appears in 1 contract
Sources: Securities Purchase Agreement (Princeton Review Inc)
Board Observer. (a) Priceline shall have The Company hereby agrees that, from the right, exercisable by delivering notice IPO Closing and at all times thereafter until immediately prior to the CompanyBusiness Combination Closing, to designate one observer to attend any meetings representative of the Board and each committee thereof Purchaser (the a “Board Observer”) for will be invited to attend meetings of the Board in an observer capacity and receive all materials distributed to the Board as and when so long as distributed (subject to the limitations set forth in clause (ii) below); provided, however, that such Board Observer shall not have the right to vote on any matter that shall come before the Board, shall not be entitled to offer any motions or resolutions to the Board or otherwise have any powers of a member of the Board; provided further, however, that (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer Purchaser shall agree to hold in confidence all materials distributed to the Board and all non-public information provided (provided that by the Company in connection with meetings of the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar anything non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of public learned during the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member meetings of the Board (xcollectively, the “Board Information”) and (ii) the Company reserves the right to withhold any Board Information and to rescind the extent that the presence of invitation for such Board Observer to attend any meeting or portion thereof if the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofdetermines in good faith, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external following consultation with outside counsel, the loss of attorney-client privilege in relation that it is reasonably necessary to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) act in the Company’s rights under agreements with Priceline or its Subsidiaries best interest of the Company or (2) matters related to business competition between preserve attorney-client privilege, provided further, however, that only the part or portion of the Board Information that is in the best interest of the Company to be withheld or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that is privileged is so withheld from the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given excluded only from the notice in the same form and manner as, and copies of the same materials as and when provided to, the members related portion of the Board and meeting. Not later than 2 Business Days prior to the date of the IPO Closing, the Purchaser shall notify the Company takes reasonable measures to facilitate in writing of the name and contact information of the Board Observer’s attendance at any . The Company shall be entitled to rely on such meeting notice until it is revoked in writing by the Purchaser and a new notice is delivered to the Company in accordance with this Section 3.2(b)10(a) hereof.
Appears in 1 contract
Sources: Forward Purchase Agreement (Israel Amplify Program Corp.)
Board Observer. The Company shall permit a representative of Chesapeake (athe “Observer”) Priceline shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any all meetings of the Board of Directors and each committee all committees thereof (whether in person, telephonic or other) in a non-voting, observer capacity and shall provide to Chesapeake the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) right to receive notice of each meeting (including telephonic meetings) of the Board all notices, reports and any committee thereof in other communications sent to directors, at the same form and manner as is given time they are transmitted to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board . The Observer may be excluded from all or a portion of any meeting or from receiving all or portion thereof and need not be provided such materials if a portion of any materials provided to the member majority of the Board (x) to the extent of Directors reasonably believes that the presence of the Board Observer Observer’s attendance at such meeting or any portion thereof or the receipt by the Board Observer of access to such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of information would: (i) adversely affect attorney-client privilege between the Company and its counsel; (ii) represent confidential or proprietary business information that could be misused by Chesapeake; or (iii) involve a conflict of interest between the Company and Chesapeake. Chesapeake agrees and acknowledges that it and the Observer will be bound by the confidentiality provisions of Section 8.7 of this Agreement. The Company acknowledges that Chesapeake and the Observer may have, from time to time, information (“Information”) that may be of interest to the Company regarding a wide variety of matters including, by way of example only, current and future investments Chesapeake has made, may make, may consider or may become aware of with respect to other companies that may be competitive with the Company’s. The Information may or may not be known by the Observer. The Company agrees that Chesapeake and the Observer shall have no duty to disclose any Information to the Company or permit the Company to participate in relation any investments based on any Information, or to otherwise take advantage of any opportunity that may be of interest to the Company if it were aware of such Information, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or that would require Chesapeake or the Observer to disclose any such Information to the Company or offer any opportunity relating thereto to the Company. Any one of the individuals named on Schedule 3.2 may act as Chesapeake’s Observer. From time to time, its Subsidiaries or its AffiliatesChesapeake may, or (y) upon written notice to the extent the subject matter to be discussed at the meeting concerns (1) and approval by the Company’s rights under agreements , propose an amendment to Schedule 3.2 to replace any of the individuals named on Schedule 3.2 with Priceline or its Subsidiaries or (2) matters related different individuals who may act as Observer. The right of Chesapeake to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board an Observer shall not constitute be suspended during the time period in which Chesapeake has exercised its right to direct the election and appointment of a member of the Board director under Section 3.4 hereof and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)directors hold office.
Appears in 1 contract
Board Observer. For so long as (ai) Priceline shall the Purchaser (together with its Affiliates) has Beneficial Ownership of a number of shares of Common Stock not less than the Closing Shares (as adjusted for any stock splits, stock dividends, recapitalizations or similar transactions) and (ii) there does not exist a Material Breach (each, a “Termination Event”), the Purchaser will have the right, exercisable by delivering notice to the Company, right to designate one observer to attend any meetings of the Board and each committee thereof a representative (the “Board Observer”) for so long to act as (i) Priceline and its Subsidiaries beneficially own at least a non-voting observer of meetings of the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects of Directors with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) right to receive notice of each meeting (including telephonic meetings) and attend or otherwise participate in all meetings of the Board of Directors and any committee thereof in to receive all information furnished to the Company’s directors at the same form and manner time as it is given to the members of so furnished; provided that (a) the Board and of Directors will have the same materials as and when provided right to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to approve the Board Observer and a copy of the proposed consent(such approval not to be unreasonably withheld, any exhibits, annexes conditioned or schedules thereto and any related materials delayed) and (iib) at the Board Observer’s discretion, to attend each of Directors may exclude the Board meeting or meeting Observer from such portions of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of meeting where the Board of Directors reasonably determines that such exclusion is necessary to preserve attorney-client privilege or to avoid a conflict of interest. The Purchaser, in consideration of its attendance and participation at such meetings, and the Company covenants hereby agrees to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) cause the Board Observer shall agree to hold be bound by and comply with the Company’s confidentiality, trading windows and black-out policies applicable to insiders and others receiving the Company’s confidential and proprietary information in confidence all information the forms provided to the Purchaser prior to the date hereof, as amended from time to time (provided that no such policies shall restrict the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision from making disclosures of information to Priceline the Purchaser and its Subsidiaries and their respective directorsAffiliates, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may information so disclosed will be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b5.2).
Appears in 1 contract
Sources: Common Stock Purchase Agreement (vTv Therapeutics Inc.)
Board Observer. The Company hereby agrees that, from and after the Closing Date, for so long as EJF and its Affiliates own in the aggregate 5.0% of the Common Stock then outstanding (a) Priceline “Minimum Ownership Interest”), the Company shall have the right, exercisable invite a person designated by delivering notice EJF and reasonably acceptable to the Company, to designate one observer Company (the “Observer”) to attend any meetings of the Board of Directors and each committee the Bank Board (including any meetings of committees thereof (unless such attendance would be inconsistent with commitments that EJF has provided to the “Board Observer”Federal Reserve in connection with the transaction) for so long as (i) Priceline and its Subsidiaries beneficially own at least in a nonvoting, nonparticipating observer capacity. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive written notice of each meeting (including telephonic meetings) of the Board of Directors and any committee thereof the Bank Board at the same time and in the same form and manner as is given to the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials as and when provided information are given to such members (both before or after provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee Company shall give written notice thereof shall conduct any business by written consent without giving such prior notice to the Board Observer prior to the effective date of such consent describing the nature and a copy substance of such action and including the proposed consenttext of such written consents provided, any exhibitshowever, annexes or schedules thereto and any related materials and that (ii1) at the Board Observer’s discretion, to attend each Board meeting or meeting Observer may be excluded from executive sessions comprised solely of any committee thereof, either in person or independent directors by telephonic conference, and to participate fully in all discussions among directors the Chairman of the Board at (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such meetingsexclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Company covenants Bank Board shall have the right to take reasonable measures withhold any information and to facilitate such attendance and discussion; provided thatexclude the Observer from any meeting or portion thereof if doing so is, notwithstanding any other provision in the written advice of this Section 3.2counsel, (A) necessary to protect the Board attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) EJF shall cause its Observer shall to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (provided except to the extent that the Board Observer shall not such information can be restricted in any confidential communications or discussions with or the confidential provision of information shown to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)have been (1) previously known by such party on a nonconfidential basis, (B2) in the public domain through no fault of such Board party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 portions of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member meetings of the Board (x) of Directors as well as the Bank Board to the extent that the presence Board of the Board Observer at such meeting or any portion thereof Directors or the receipt by the Board Observer of such materials or any portion thereofBank Board, as the case may be, could reasonably will, in any such portion thereof be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) discussing any matters related to business competition between EJF, the Company Transaction Documents, or its Subsidiaries, on any of EJF’s rights or obligations under any of the one hand, and Priceline Transaction Documents or its Subsidiaries, on the any other hand, in the People’s Republic of China); it being understood matter that the Board Observer shall not constitute a member Chairman of the Board and shall not of Directors or the Chairman of the Bank Board determines in good faith is or may be entitled to vote on, or consent to, any matters presented adverse to the Board. For the avoidance interests of doubtEJF provided, subject to the first sentence of this Section 3.2(b)however, in the event that any regular or special meeting of the Board is convened, the Company no matter shall be deemed to be in full compliance with adverse to the provisions interests of this Section 3.2(b), EJF merely because such matter may adversely impact the price of any of the Company’s Securities. EJF covenants and agrees to hold all information obtained from its Observer as provided that the Board Observer is given the notice in the same form prior sentence in confidence to comply with all requirements and manner as, and copies of the same materials as and when provided to, the obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the Company takes reasonable measures extent (if at all) applicable to facilitate the Board Observer’s attendance at any such meeting . If EJF and its Affiliates in accordance with the aggregate no longer have a Minimum Ownership Interest, EJF will have no further rights under this Section 3.2(b)1.
Appears in 1 contract
Board Observer. (a) Priceline The Company agrees that, from and after any such time as the number of Warrant Shares issuable upon exercise of the Warrant that have vested under the terms of the Warrant (including exercised Warrant Shares) is equal to at least 6.0% shares of the Company’s issued and outstanding Common Stock (the “Observer Threshold”), Amazon shall have the right, exercisable by delivering notice to but not the Companyobligation, to designate one observer an individual employee or other service provider of Amazon or any of its Affiliates (any such individual, the “Amazon Observer”) to attend any all meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companya non-voting, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1observer capacity, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board which Amazon Observer shall be entitled approved by the Company (i) such approval not to receive be unreasonably withheld, conditioned, or delayed), provided, however, that no approval by the Company will be required if the Amazon Observer is an employee of Amazon or any of its Affiliates, in which case Amazon shall notify the Company of the identity of the Amazon Observer at least fourteen days before the first meeting to be attended by such Amazon Observer in that role. In this respect, the Company shall provide to the Amazon Observer notice of each meeting (including telephonic meetings) such meetings and, subject to Section 5.1(b), a copy of the Board and any committee thereof in meeting materials at the same form and manner time as is given provided to the members of the Board in their capacity as such, and shall provide the Amazon Observer with the same materials as rights to expense reimbursement that it provides to independent members of the Board. The Company acknowledges and when provided to such members (both before agrees that the Amazon Observer will not owe any fiduciary duties or after a meetingany other similar obligations or duties, including copies of minutes thereof)in law or equity, including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries subsidiaries, or its stockholders and may act at all times in the best interests of Warrantholder, Amazon, and any of their respective Affiliates.
(b) Notwithstanding the above, or (y) the Amazon Observer shall not be entitled to attend and otherwise participate in, and shall, to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline applicable, waive notice of and recuse themselves from, such meetings or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board portions thereof and shall not be entitled to vote onreceive any information, in each case (i) to the extent relating to Amazon, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby, (ii) to the extent such information involves competitively sensitive information about specific Company customers, (iii) if the Company believes based on the good faith written advice of outside counsel that providing such information would violate Applicable Law (in which case the Company shall notify Amazon of such belief and the Company and Amazon shall consult and cooperate in good faith in determining whether the Company is legally prohibited from providing such information to the Amazon Observer), or consent to(iv) where the Company determines based upon good faith written advice from outside counsel that providing such information (A) would reasonably be expected to jeopardize an attorney-client privilege or cause a loss of attorney work product protection or (B) would violate a contractual confidentiality obligation to any third party; provided, any matters presented that, with respect to clauses (ii) through (iv), the Board. For Company uses reasonable best efforts and cooperates in good faith with the avoidance of doubt, subject Amazon Observer to develop and implement reasonable alternative arrangements to provide the first sentence Amazon Observer with the intended benefits of this Section 3.2(b3.4.
(c) The Company shall at all times provide or otherwise make available to the Amazon Observer, if applicable (in his or her capacity as such), in the event same rights to indemnification and exculpation that any regular or special meeting it provides to members of the Board is convened(including with respect to derivative claims).
(d) Promptly upon the occurrence of Warrantholder, Amazon, and any of their respective Affiliates holding Warrant Shares and vested Warrant Shares subject to exercise under the Warrant less than the Observer Threshold, all obligations of the Company shall be deemed to be in full compliance with respect to, and all rights of, Amazon and the provisions of Amazon Observer under this Section 3.2(b3.4 (other than rights to indemnification and exculpation as contemplated by Section 3.4(c)) shall terminate and, provided that the Board Observer is given the notice in the same form and manner as, and copies unless otherwise consented to by a majority of the same materials as and when provided to, the members of the Board and Board, Amazon shall cause the Company takes reasonable measures Amazon Observer to facilitate cease attending meetings of the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Board.
Appears in 1 contract
Sources: Transaction Agreement (Applied Optoelectronics, Inc.)
Board Observer. (a) Priceline The Investors shall have the right, exercisable by delivering notice right to have one representative (who need not be the Company, same individual from meeting to designate one observer to attend any meetings meeting) (a “Non-Voting Observer”) observe in full each meeting of the Board and each committee of the committees thereof (a “Meeting”), whether in person or, at the “Board option of the Non-Voting Observer”) for so long as , via telephone attendance; provided that the Non-Voting Observer may not attend (i) Priceline any Meeting of the Audit Committee or Compensation Committee where such committee has determined in good faith and its Subsidiaries beneficially own at least after consultation with legal counsel that the Board Observer Threshold Shareholding in the Companysubject matter of such Meeting is such that it is required or advisable that only independent directors attend and non-independent directors not attend, (ii) Priceline and its Subsidiaries comply any Meeting or portion thereof where such attendance by the Non-Voting Observer could, in all material respects with the provisions opinion of Section 2.1legal counsel, compromise the Company’s attorney-client privilege under applicable law or (iii) Priceline any Meeting or portion thereof where a similarly situated director of the Company should, in the opinion of legal counsel, recuse himself from attendance of such Meeting or portion thereof under applicable law, regulation or the rules of any stock exchange or interdealer quotation system because such attendance would present a material conflict of interest; provided, however, that any such exclusion of the Non-Voting Observer pursuant to clause (ii) or (iii) shall extend only with respect to the subject matter and its Subsidiaries comply in all material respects with the provisions portion of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and any such Meeting relating to such privilege or conflict. Zohar CDO 2003-1, Limited, ▇▇▇▇▇▇▇.▇▇ ▇▇ B.V. complies in all material respects 2005-1, Limited, their Affiliates and their Affiliated Funds shall not exercise their rights under this Section 5.9 and Section 5.2 of the Patriarch Credit Agreement with respect to the provisions thereof (the “Board Observer Right”)same Meeting.
(b) The Board Observer Company shall be entitled give the Investors written notice of each Meeting, including the Meeting’s time and place, in the same manner as the directors of the Board, and (subject to the exceptions in clause (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at of Section 5.9(a)) shall provide the Board Observer’s discretionInvestors with any document, to attend each Board meeting correspondence or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in to any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) individually or to the extent that Board collectively, whether provided by the presence Company or a third party, including, without limitation, agenda and minutes of the Board Observer at Meetings, in each case, no later than it gives such meeting notice and provides such document, correspondence or any portion thereof other information to such member or the receipt by the Board Observer of such materials or any portion thereofBoard, as the case may be.
(c) The Company shall reimburse the Non-Voting Observer for its reasonable out-of-pocket expenses incurred in connection with attendance at each Meeting, could reasonably be expected including but not limited to result infood, based on the advice of the Company’s external counsel, the loss of attorneylodging and transportation.
(d) The Non-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Voting Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), participate in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form discussions and manner asconsult with, and copies of the same materials as make proposals and when provided furnish advice to, the Board or committee without voting. The Non-Voting Observer shall have a duty of confidentiality to the Company comparable to the duty of confidentiality of a director of the Board.
(e) The Company shall use commercially reasonable efforts to obtain within 30 days of the Second Amendment Date (as such term is defined in the Patriarch Credit Agreement) and (if so obtained) shall thereafter maintain directors’ and officers’ liability insurance covering the Non-Voting Observer in an amount of at least $10,000,000.
(f) The Company shall indemnify and hold harmless, to the fullest extent permitted under applicable law, the Non-Voting Observer to the same extent as members of the Board and on terms no less favorable than under the Company takes reasonable measures to facilitate Company’s by-laws or other governing document as in effect on the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)date hereof.
Appears in 1 contract
Sources: Series C Convertible Preferred Shares Purchase Agreement (XINHUA SPORTS & ENTERTAINMENT LTD)
Board Observer. For so long as BCP and its Affiliates collectively beneficially owns at least 10% of the outstanding shares of Common Stock, BCP shall have the right to appoint one non-voting observer to the Board (the “BCP Observer”), and the BCP Observer shall be entitled to (a) Priceline shall have receive contemporaneously the rightsame notice and other materials in respect of all meetings of the Board as are furnished to members of the Board, exercisable by delivering notice to the Companytogether with an agenda for any such meetings, to designate one observer to (b) attend any all meetings of the Board and each committee thereof (the “Board Observer”c) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors conducted at meetings of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussionBoard; provided that, notwithstanding any other provision of this Section 3.2, the (Ai) the Board Observer shall agree to hold in confidence all information provided (provided that the Board BCP Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any considered a “blackoutDirector” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not otherwise constitute a member of the Board and shall not in no event be entitled to vote on, or consent to, on any matters presented to the Board. For , (ii) the avoidance BCP Observer shall agree to hold in confidence and trust (consistent with Section 4 of doubt, subject this Agreement) and to act in a fiduciary manner with respect to all information provided or obtained as the BCP Observer as a condition to the first sentence Company complying with the foregoing clauses (a) through (c) of this Section 3.2(b)3, and (iii) the Company may exclude the BCP Observer from attending any portion of Board meetings and participation in the event that any regular or special meeting discussions conducted at meetings of the Board is convenedand/or withhold any materials if such attendance or participation or access to such materials (A) could adversely affect the attorney-client privilege between Company and its counsel or (B) would reasonably be expected to result in a conflict of interest between BCP and its Affiliates or the BCP Observer, on the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b)one hand, provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate and its subsidiaries, on the Board Observer’s attendance other hand. The BCP Observer may be removed and/or replaced at any such meeting in accordance with this Section 3.2(b)time by (and only by) BCP by providing notice thereof to the Company’s Chief Executive Officer or Chief Financial Officer.
Appears in 1 contract
Sources: Information Rights Agreement (Charah Solutions, Inc.)
Board Observer. (a) Priceline For so long as a TPG Director serves on the Board, TPG Pace shall have the right, exercisable by delivering notice to the Company, right to designate one observer (1) natural person, which person shall be subject to attend any meetings the consent of the Board and each committee thereof (the “Board Observer”) for ▇▇▇▇ so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in ▇▇▇▇▇▇▇ ▇▇▇▇ serves as the Company’s Chief Executive Officer, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1which shall not be unreasonably withheld, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and who shall initially be ▇▇▇▇ ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) , to receive notice of attend each regularly scheduled, special and other meeting (including telephonic meetings) of the Board and any committee committees thereof as a non-voting observer (in such capacity, a “Non-Voting Observer”); provided, that the Non-Voting Observer shall enter into a customary confidentiality agreement with the Company on terms reasonably acceptable to the Company, which shall be no less favorable to the Company than the confidentiality provisions applicable to TPG Pace under Section 3.4. Notice of the time and place of each such meeting shall be given to the Non-Voting Observer in the same form manner and manner at the same time as notice is given to the Board. The Non-Voting Observer shall be given copies of all notices, reports, minutes, consents and other documents and materials at the time and in the manner as are provided to the Board or the applicable committee thereof. Notwithstanding the foregoing, the Non-Voting Observer may be excluded from access to the portion of any meeting of the Board or any committee thereof or the portion of material relating thereto if the Board or such committee reasonably determines in good faith that such access would be reasonably likely to (a) prevent the members of the Board or such committee from engaging in attorney-client privileged communication with counsel, or (b) result in a material conflict of interest with the Company or one or more of its subsidiaries, so long as, in each case, the Company promptly notifies the Non-Voting Observer of such determination and provides the same Non-Voting Observer a general description of the information or materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice that have been withheld to the Board Observer and a copy of extent that providing such description does not jeopardize the proposed consent, any exhibits, annexes attorney-client privilege to be preserved or schedules thereto and any related materials and (ii) at result in the Board Observer’s discretion, material conflict to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures avoided (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent agreed that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one handwill take, and Priceline or will cause its Subsidiariessubsidiaries to take, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled reasonable steps to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at minimize any such meeting in accordance with this Section 3.2(bexclusions).
Appears in 1 contract
Sources: Stockholder Agreement (TPG Pace Tech Opportunities Corp.)
Board Observer. (a) Priceline The Issuer shall have the right, exercisable by delivering notice to the Company, to designate allow one observer to attend any meetings of the Board and each committee thereof representative (the a “Board Observer”) for so long jointly designated by Sankaty Advisors LLC (“Sankaty Advisors” and together with its Affiliates, “Sankaty”) and Falcon Strategic Partners III, LP (“Falcon Partners” and together with its Affiliates, “Falcon”) to attend and participate in all meetings and other activities of the governing body (each governing body referred to herein as a “Board of Directors” and its members referred to as “Directors”) of Issuer and each of its Subsidiaries, including all committees and sub-committees thereof ; provided that such Board Observer shall have no voting rights. The Issuer shall (i) Priceline give Sankaty Advisors and its Subsidiaries beneficially own Falcon Partners notice of all such meetings, at least the same time as furnished to the directors, managers, or partners, as applicable, of the applicable Board Observer Threshold Shareholding in the Companyof Directors, (ii) Priceline provide to the Board Observer, whether at or in anticipation of a meeting, an action by written consent or otherwise, all notices, documents and its Subsidiaries comply in all material respects with information furnished to the provisions of Section 2.1Directors at the same time furnished to such Directors, (iii) Priceline notify Sankaty Advisors and its Subsidiaries comply in Falcon Partners of, and permit the Board Observer to participate by telephone in, all material respects with the provisions emergency meetings of Section 3.1(a) each Board of Directors and all committees and sub-committees thereof, (iv) provide the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
with copies of the minutes of all such meetings at the time such minutes are furnished to the Directors and all committees and sub-committees thereof, (bv) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) cause regularly-scheduled meetings of the Board and any committee thereof in the same form and manner as is given to the members of Directors of the Board and the same materials as and when provided Issuer to be held no less frequently than quarterly with at least one such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than meeting in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice each Fiscal Year to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials be held in person and (iivi) at the Board Observer’s discretion, to attend each Board meeting or meeting reimburse Sankaty and Falcon for all reasonable out of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt pocket expenses incurred by the Board Observer of in connection with such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observerperson’s attendance at any such meeting in accordance with this Section 3.2(b)meetings of each Board of Directors and all committees and sub-committees thereof.
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (Princeton Review Inc)
Board Observer. Beginning on the Closing and until all Indebtedness (including, without limitation, all principal of, premium, if any, and interest) and other amounts owing under the Notes has been paid in full Purchaser shall (a) Priceline be entitled to have an observer, who initially shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and be D▇▇▇▇▇▇ ▇▇▇▇▇▇▇.▇▇▇ B.V. complies , attend and participate in all material respects with meetings of the provisions thereof Board of Directors of GFN (or any successor thereto) and committees thereof, and such observer shall have all rights (other than voting rights but including informational rights) that any member of the “Board Observer Right”).
of Directors of GFN has in his or her role as such, and (b) The Board Observer shall promptly receive any and all materials and other information (such as notices of meetings, reports, board packages, and financial statements and reports) provided to, or that may be entitled (i) to receive notice of each meeting (including telephonic meetings) provided to, any member of the Board of Directors of GFN. GFN shall promptly take any and any committee thereof all actions necessary to comply with the obligations in this Section 9.18. Purchaser agrees that during the same form and manner as is given period that a representative of Purchaser has rights to the members attend meetings of the GFN Board and the same materials as and when provided to such members (both before or after a meetingan observer, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline Purchaser shall be subject to and shall comply with the Company’s ▇GFN I▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures Disclosure Policy, including, without limitation, all trading windows and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of black out periods. Notwithstanding the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counselforegoing, the loss representative of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Purchaser acting as a Board Observer shall not constitute a member of the Board and observer shall not be entitled to vote onbe present at any meeting or discussion, or consent to, receive board package or other materials that involve matters between GFN and the Purchaser (or its Affiliates) or to participate in discussions involving third party claims (or potential third party claims) against the GFN or its Subsidiaries at which legal counsel for GFN or any matters presented to of its Subsidiaries is present and the Board. For attendance by the avoidance of doubt, subject to the first sentence of this Section 3.2(b)Purchaser would, in the event that opinion of legal counsel, cause GFN or any regular or special meeting of its Subsidiaries to lose the Board is convened, the Company shall be deemed attorney-client privilege with respect to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)discussions.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Finance CORP)
Board Observer. a. Effective as of the Closing Date (a) Priceline as defined in that certain Securities Purchase Agreement dated as of even date herewith (the “Purchase Agreement”)), the Company shall have invite one designee of the rightInvestors (the “Observer”), exercisable as designated by delivering notice the Investors from time to the Companytime, to designate one observer to attend any and participate in all meetings of the Board of Directors of the Company (the “Board of Directors”) and each committee thereof (in a nonvoting observer capacity. In this respect, the “Board Observer”) for so long as Company shall give the Observer (i) Priceline written notice of, agendas and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to participation details for such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials meetings and (ii) copies of all notices, minutes, consents, and other materials, in each case, that it provides to its directors at the Board Observer’s discretionsame time and in the same manner as provided to such directors; provided, to attend each Board meeting or meeting of any committee thereofhowever, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at that such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information so provided; provided (provided further, that the Board of Directors and each committee shall have the right to withhold any information and exclude the Observer shall not be restricted from any executive sessions of such meetings if only non-employee directors are present (in addition to any confidential communications legal or discussions with other advisors or representatives requested by such non-employee directors); and provided further, that the confidential provision Company reserves the right to withhold any information and to exclude the Observer any meeting or portion thereof if the Board of Directors determines in good faith that (i) based upon the advice of outside counsel, access to such information or attendance at such meeting is reasonably likely to Priceline (x) adversely affect the attorney-client privilege between the Company and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)or (y) result in a conflict of interest, (Bii) the Observer is a competitor of the Company, or (iii) such Board Observer withholding and Priceline shall be subject exclusion is necessary to protect trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company) and the Observer is notified in advance of any such withholding or exclusion. The Observer shall not, by virtue of his or her capacity as such, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or any of its Affiliates or subsidiaries or its or their respective equityholders or any other person or entity or any duties (fiduciary or otherwise) otherwise applicable to the members of the Board of Directors in their capacity as such. With respect to the Observer, the Company’s ▇obligations under this Section 2(a) are contingent upon such Observer’s (1) entering into a confidentiality agreement with the Company in a form that is reasonably acceptable to the Company and the Investors and (2) agreeing, solely in such individual’s capacity as the Observer, to be bound by the Company’s i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and window policies then in effect and procedures and shall sign an acknowledgement form stating that he or she and it agree applicable to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member members of the Board (x) of Directors.
b. From time to time, the extent that Company may invite additional designees of the presence Investors to attend meetings of the Board Observer at such meeting or any portion of Directors and committees thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubtnonvoting observer capacity, subject to the first sentence mutual consent and agreement of the Company and the Investors; provided, however, that any such additional designee shall agree (i) to hold in confidence information so provided and (ii) to enter into and be bound by those agreements and policies set forth in Section 2(a)(1) and (2).
c. The rights set forth in this Section 3.2(b), in 2 shall terminate and be of no further force or effect at such time as the event that any regular or special meeting Investors and/or their Affiliates cease to collectively beneficially own at least 50% of the Board is convenednumber of pre-funded warrants purchased by the Investors under the Purchase Agreement (as adjusted for stock splits, recapitalizations and other similar events and including all shares of common stock issued upon the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies conversion of the same materials as and when provided to, pre-funded warrants to the members of extent still beneficially owned by the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(bInvestors and/or their Affiliates).
Appears in 1 contract
Sources: Publicity and Board Observer Rights Agreement (Acrivon Therapeutics, Inc.)
Board Observer. (a) Priceline During the Term, Ocelot SPV LP and [***] shall have the right, exercisable by delivering notice to the Company, right to designate one observer (1) individual to attend any be present in a non-voting, observational capacity (for clarity, with no right to participate) at all meetings of the Opthea Board and each of Directors or any committee thereof thereof, including any telephonic meetings but excluding executive sessions of any such meetings (such individuals, the “Investors Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer RightObservers”).
(b) The , provided that [***]’s right to designate an Investor Board Observer shall be entitled (i) terminate upon any assignment by [***] of this Agreement, in whole or in part, unless otherwise consented to receive notice of each meeting (including telephonic meetings) of the Board by Opthea and any committee thereof in the same form and manner as is given Ocelot SPV LP. Any materials that are sent by Opthea to the members of the Opthea Board and of Directors in their capacity as such shall be sent to the same materials Investors Board Observers simultaneously by means reasonably designed to ensure timely receipt by the Investors Board Observers (provided that Opthea need not provide to the Investors Board Observers any information that, if disclosed to the Investors Board Observers in their capacity as and when such, would adversely affect the maintenance by Opthea of any applicable attorney-client privilege, any information that relates to (i) the negotiation of any amendment to or restatement of this Agreement, (ii) the strategy with respect to this Agreement as it specifically relates to any Investor (provided that nothing in this clause (ii) shall permit Opthea to such members (both before withhold information related to the Product or after a meetingthe activities undertaken by Opthea, including copies of minutes thereof)whether generally or pursuant to this Agreement, including materials provided other than in connection with a meetingDeveloping and Commercializing the Product) or (iii) the relationship between Opthea and any Investor, and neither the Board nor or any committee thereof shall conduct any information related to internal business by written consent without giving such prior notice matters of Opthea that does not relate to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, activities to attend each Board meeting or meeting of any committee thereof, either in person or be undertaken by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made Opthea pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) this Agreement and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could would not reasonably be expected to result inhave a Material Adverse Event), based on and Opthea will give the advice Investors Board Observers notice of such meetings, by the same means as such notices are delivered to the members of the Company’s external counsel, Opthea Board of Directors and at the loss of attorney-client privilege in relation same time as notice is provided or delivered to the Company, its Subsidiaries or its Affiliates, or (y) Opthea Board of Directors. Each Investors Board Observer will execute a confidentiality agreement in form and substance reasonably acceptable to the extent the subject matter to be discussed at the meeting concerns designating Investor (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiariesand, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For for the avoidance of doubt, subject a designating Investor will remain responsible to the first sentence of this Section 3.2(b), in the event that Opthea for any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the noncompliance by its designated Investor Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any with such meeting in accordance with this Section 3.2(bconfidentiality obligations).
Appears in 1 contract
Board Observer. (a) Priceline For so long as the Stockholders (x) Beneficially Own, in the aggregate, at least two-thirds (2/3) of the Initial Shares and (y) do not have a Director Designation Right, (i) the Stockholders shall have the rightright to (A) appoint one (1) non-voting representative (the “Observer”) to attend (at the Observer’s option, exercisable by delivering in person or via remote access, including telephonically) all meetings of the Board (and all committees thereof on which independent directors of the Company serve (collectively, the “Independent Committees”)), (B) change the Observer so appointed at any time upon written notice to the CompanyCompany and (C) upon the resignation, removal or replacement of the Observer for any reason, to designate one observer appoint another Observer and (ii) the Company shall provide the Observer with copies of all notices, consents, resolutions, minutes or other written materials provided or made available to the Board (or to any Independent Committee) as set forth in the Board Agreement. The Stockholders shall cease to have any right or entitlement to appoint an Observer from and after the first instance in which the Stockholders cease to Beneficially Own, in the aggregate, at least two-thirds (2/3) of the Initial Shares.
(b) Prior to the right of the Observer to attend any meeting of the Board (or any Independent Committee) or receive the information contemplated in Section 4.01(a)(ii), the Observer shall execute and deliver to the Company a Board Agreement.
(c) Notwithstanding anything to the contrary in this Agreement or the Board Agreement, the Company may exclude such Observer from access to any portions of materials or attendance at any portion of any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and or any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (xIndependent Committee) to the extent that the presence of the Board Observer at such meeting (i) access or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could attendance would reasonably be expected to result in, based on jeopardize the advice attorney- client privilege of the Company’s external counsel, any of its Affiliates or the loss of attorney-client privilege in relation Ares Funds, (ii) access or attendance would reasonably be expected to violate any confidentiality obligation owed to any unaffiliated third party by the Company, any of its Subsidiaries Affiliates or its Affiliatesthe Ares Funds, (iii) materials or meetings relates to (y) to the extent the subject matter to be discussed at the meeting concerns (1A) the Company’s rights under agreements ’s, the Ares Funds’ or any of their respective Affiliates’ relationship, contractual or otherwise, with Priceline any of the Stockholders or its Subsidiaries any of their respective Affiliates or (2B) matters related to business competition any actual or potential transactions between or involving the Company Company, the Ares Funds or its Subsidiariesany of their respective Affiliates, on the one hand, and Priceline any of the Stockholders or its Subsidiariesany of their respective Affiliates, on the other hand, in or (iv) such exclusion is necessary to avoid an actual or reasonably likely conflict of interest. Notwithstanding the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convenedforegoing, the Company shall use commercially reasonable efforts to make other arrangements (including redacting information or making substitute disclosure arrangements) that would enable disclosure to the Observer to occur without
(A) in the case of the foregoing clause (i), jeopardizing such privilege, (B) in the case of the foregoing clause (ii), violating such confidentiality obligations, or (C) in the case of the foregoing clause (iv), creating an actual or reasonably likely conflict of interest.
(d) Notwithstanding anything in this Agreement to the contrary, the Observer must be deemed reasonably acceptable to the Company and may not be a Person who (i) has been removed for cause from the Board, (ii) has ever been convicted of a felony or equivalent crime (which conviction was not subsequently overturned) under the laws of any jurisdiction, (iii) is or has been subject to any permanent injunction on serving on the board of directors (or similar governing body) of publicly listed companies in the United States for violation of any United States federal or state securities law, (iv) has been determined by any governmental or quasi- governmental agency or authority of competent jurisdiction, or is reasonably likely pursuant to applicable law, regulation or listing authority rules, to be in full compliance with ineligible to serve on a board of directors (or similar governing body) of publicly listed companies or (v) is employed by, is engaged as a consultant for, or serves as a director (or similar position) for, any competitor of the provisions of this Section 3.2(b), provided Company. The Company acknowledges that the Board individual identified by the Investor in writing as the Observer is given the notice in the same form and manner as, and copies as of the same materials as and when provided to, the members date of the Board and Purchase Agreement is acceptable to the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Company.
Appears in 1 contract
Board Observer. (a) Priceline shall have The Company hereby agrees that, from and after the rightClosing, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline Castle Creek and its Subsidiaries beneficially own at least Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board Observer Threshold Shareholding in of Directors, the Company, (ii) Priceline Company shall invite a person designated by Castle Creek and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given reasonably acceptable to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective all directors, officers, employees, accountantsprincipals, agentsadvisors and Affiliates of Castle Creek or any of its Affiliates shall be deemed reasonably acceptable to the Company for purposes hereof) (the “Observer”) to attend meetings of the Board of Directors in a non-voting, counsel non-participating observer capacity; provided, however that in no event shall the Observer be entitled to attend more than six (6) meetings of the Board of Directors during the period from the date hereof to the first anniversary hereof and, thereafter, to attend more than four (4) meetings of the Board of Directors per year, except as mutually agreed between the Company and Castle Creek. The Observer shall be entitled to attend such meetings only in the event Castle Creek does not have a Board Representative on the Board of Directors. The Observer shall not have any right to vote on any matter presented to the Board of Directors or any committee thereof. 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, shall, with respect to meetings actually attended by the Observer, provide the Observer, on the date of the meeting, with all written materials and other representativesinformation given to members of the Board of Directors (provided, however, that the Observer shall not be provided any confidential supervisory information), (B) such Board and shall permit the Observer and Priceline shall be to attend as an observer at all meetings thereof, subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies limitations in this Section 4, and procedures in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and shall sign an acknowledgement form stating substance of such action and including the proposed text of such written consents; provided, however, that he (1) the Observer may be excluded from executive sessions comprised solely of independent directors by the Chairman of the Board of Directors (or, if applicable, the lead or she and it agree presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with such policies and procedures applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Observer from any meeting or portion thereof if doing so is, in the written advice of counsel, (A) necessary to protect the attorney-client privilege between such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies party and procedures shall not restrict Priceline counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) necessary to avoid a violation of the Board Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) Castle Creek shall cause the Observer may be excluded from to agree to hold in confidence and trust and to act in a fiduciary manner, with respect to all or a portion of any meeting or from receiving all or a portion of any materials information provided to the member of the Board such Observer (x) except to the extent that such information can be shown to have been (1) previously known by such party on a nonconfidential basis, (2) in the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer public domain through no fault of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliatesparty, or (y3) later lawfully acquired from other sources by the party to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); which it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(bwas furnished).
Appears in 1 contract
Board Observer. (a) Priceline shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so So long as (i) Priceline and its Subsidiaries beneficially own Putnam holds at least the Board Observer Threshold Shareholding in the Company2,000,000 Shares, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and Putnam shall be entitled to ▇▇▇▇▇▇ate one non-voting observer (the "▇.▇▇-▇▇TING OBSERVER") to attend (but not vote at) all meetings of the Board of Directors and all committees thereof. The Non-Voting Observer shall have the same access to information concerning the business and operations of the Company and at the same time as the directors of the Company, except for such information that the Company reasonably determines it cannot distribute for confidentiality reasons, and shall be entitled to ask questions of the Board of Directors, but shall not be entitled to vote. Putnam's right to nominate the Non-Voting Observer and all rights of ▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board ▇▇▇nam Non-Voting Observer shall be entitled terminate upon the earlier of (ia) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇w▇▇▇▇▇▇ ▇▇notice of termination by Putnam to the Company or (b) the date the Company requests the Commi▇▇▇▇▇ policies to accelerate the effectiveness of the Company's registration statement relating to the Initial Public Offering. The rights of any other Purchasers, including the rights to have access to the books and procedures records of the Company and other information as provided above, shall sign an acknowledgement form stating terminate as of the date of the Company's final prospectus relating to the Initial Public Offering. Subject to any other agreement between the parties, Putnam and any other Purchaser that he or she receives information agrees that ▇▇▇ ▇nformation provided by the Company, officers, directors and it agree employees pursuant to comply with Section 5(a) and Section 5(b) will be used solely for the purpose of evaluating such policies Purchaser's investment in the Shares and procedures (it being understood the Conversion Shares, as applicable, and that such ▇▇▇information will be kept strictly confidential by such Purchaser; PROVIDED that the foregoing obligation of such Purchaser shall not (a) relate to any information that (i) is or becomes generally available other than as a result of unauthorized disclosure by such Purchaser or by persons to whom such Purchaser has made such information available, (ii) is already in such Purchaser's possession, provided that such information is not subject to another confidentiality agreement with or other obligation of secrecy to the Company or (iii) is or becomes available to such Purchaser on a non-confidential basis from a third party that is not, to such Purchaser's knowledge, bound by any other confidentiality agreement with the Company or its subsidiaries, or (b) prohibit disclosure of any information if required by Law or the rules of any stock exchange. Putnam and each other Purchaser hereby acknowledges that it is aware ▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline the United States securities laws prohibit any person who has received from an issuer or its Affiliates any Affiliate thereof any material, non-public information from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if selling securities of such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting issuer or from receiving all communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at sell such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)securities.
Appears in 1 contract
Sources: Series Cc Purchase Agreement (Commvault Systems Inc)
Board Observer. (a) Priceline The Company hereby agrees that, from and after the Closing Date, for so long as RMB Capital and its Affiliates in the aggregate have a Minimum Ownership Interest, and do not have a Board Representative currently serving on the Board of Directors and the Bank Board, the Company shall have the right, exercisable invite a person designated by delivering notice RMB Capital and reasonably acceptable to the Company, to designate one observer Company (the “Observer”) to attend any meetings of the Board of Directors and each committee the Bank Board (including any meetings of committees thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least on which the Board Observer Threshold Shareholding Representative would be permitted to attend) in the Companya nonvoting, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) nonparticipating observer capacity. The Board Observer shall be entitled (i) to receive attend such meetings only in the event RMB Capital does not have a Board Representative on the Board of Directors and the Bank Board. The Observer shall not have any right to vote on any matter presented to the Board of Directors or the Bank Board or any committee thereof. The Company shall give the Observer written notice of each meeting (including telephonic meetings) of the Board of Directors and any committee thereof the Bank Board at the same time and in the same form and manner as is given to the members of the Board of Directors or the Bank Board (as the case may be), shall provide the Observer with all written materials and other information given to members of the Board of Directors or the Bank Board (as the case may be) at the same time such materials as and when provided information are given to such members (both before or after provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee Company shall give written notice thereof shall conduct any business by written consent without giving such prior notice to the Board Observer prior to the effective date of such consent describing the nature and a copy substance of such action and including the proposed consenttext of such written consents provided, any exhibitshowever, annexes or schedules thereto and any related materials and that (ii1) at the Board Observer’s discretion, to attend each Board meeting or meeting Observer may be excluded from executive sessions comprised solely of any committee thereof, either in person or independent directors by telephonic conference, and to participate fully in all discussions among directors the Chairman of the Board at (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such meetingsexclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Observer would be excluded from routine executive sessions), (2) the Company, the Board of Directors, the Bank and the Company covenants Bank Board shall have the right to take reasonable measures withhold any information and to facilitate such attendance and discussion; provided thatexclude the Observer from any meeting or portion thereof if doing so is, notwithstanding any other provision in the written advice of this Section 3.2counsel, (A) necessary to protect the Board attorney-client privilege between such party and counsel, (B) necessary to avoid a violation of fiduciary requirements under applicable law, or (C) necessary to avoid a violation of the Health Insurance Portability & Accountability Act of 1996, as amended, or any similar law, and (3) RMB Capital shall cause its Observer shall to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to such Observer (provided except to the extent that the Board Observer shall not such information can be restricted in any confidential communications or discussions with or the confidential provision of information shown to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)have been (1) previously known by such party on a nonconfidential basis, (B2) in the public domain through no fault of such Board party, or (3) later lawfully acquired from other sources by the party to which it was furnished). The Company also may exclude the Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 portions of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member meetings of the Board (x) of Directors as well as the Bank Board to the extent that the presence Board of the Board Observer at such meeting or any portion thereof Directors or the receipt by the Board Observer of such materials or any portion thereofBank Board, as the case may be, could reasonably will, in any such portion thereof be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) discussing any matters related to business competition between RMB Capital, the Company Transaction Documents, or its Subsidiaries, on any of RMB Capital’s rights or obligations under any of the one hand, and Priceline Transaction Documents or its Subsidiaries, on the any other hand, in the People’s Republic of China); it being understood matter that the Board Observer shall not constitute a member Chairman of the Board and shall not of Directors or the Chairman of the Bank Board determines in good faith is or may be entitled to vote on, or consent to, any matters presented adverse to the Board. For the avoidance interests of doubtRMB Capital provided, subject to the first sentence of this Section 3.2(b)however, in the event that any regular or special meeting of the Board is convened, the Company no matter shall be deemed to be in full compliance with adverse to the provisions interests of this Section 3.2(b), RMB Capital merely because such matter may adversely impact the price of any of the Company’s Securities. RMB Capital covenants and agrees to hold all information obtained from its Observer as provided that the Board Observer is given the notice in the same form prior sentence in confidence to comply with all requirements and manner as, and copies of the same materials as and when provided to, the obligations applicable to members of the Board of Directors under the Securities Act, the Exchange Act, the Sarbanes Oxley Act of 2002 and all other Laws, in each case, only to the Company takes reasonable measures extent (if at all) applicable to facilitate the Board Observer’s attendance at any such meeting . If RMB Capital and its Affiliates in accordance with the aggregate no longer have a Minimum Ownership Interest, RMB Capital will have no further rights under this Section 3.2(b)2.
Appears in 1 contract
Board Observer. (a) Priceline shall have From and after the right, exercisable by delivering notice date hereof and subject to the Companyterms and conditions hereof, and until the termination of this Shareholders’ Agreement in accordance with Section 8.3 below, SOF shall be entitled to designate one observer to attend any meetings of the (1) individual as a Board and each committee thereof Observer (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least ), with such individual to be subject to the Board Observer Threshold Shareholding in prior written consent of the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The which such consent shall not be unreasonably withheld or delayed. This Board Observer shall be entitled to receive (i) to receive notice of each meeting (including telephonic meetings) and attend all meetings of the Board of Directors, (ii) copies of minutes or consents relating to each action taken by the Board of Directors and any committee thereof (iii) copies of all documents and other materials distributed to members of the Board of Directors, in each case, at the same time and in the same form and manner as is given to the received by members of the Board and the same materials as and when provided to such members of Directors (both before or after a meeting, including copies of minutes thereofitems (i), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representativesiii), (B) such collectively, the “Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating Materials”); provided, however, that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting pursuant to either clause (ii) or any portion thereof or the receipt clause (iii) of this sentence may be shared by the Board Observer of with SOF and its Affiliates and that such materials or any portion thereof, as the case may be, could reasonably information shall otherwise be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that kept confidential by the Board Observer shall not constitute a member of the Board Observer, SOF and its Affiliates and shall not be disclosed to any other Person, except as may be required by applicable law or regulation or legal process. Any individual designated pursuant to this Section 3.1 as Board Observer may be removed with or without cause at any time and for any reason or no reason by SOF in its sole discretion, by delivery of written notice to the Company only by SOF and SOF shall be entitled to vote onmaintain a Board Observer and to designate a replacement Board Observer from time to time, or consent to, any matters presented with such replacement Board Observer to the Board. For the avoidance of doubt, be subject to the first sentence prior written consent of the Company, which consent shall not be unreasonably withheld or delayed, so long as SOF then Owns at least ten percent (10%) of the outstanding Shares of Common Stock. Notwithstanding anything herein to the contrary, SOF may elect at any time and from time to time not to designate a Board Observer, in which event SOF shall not be provided with or receive any Board Materials. Any designation by SOF of a Board Observer or any removal of any Board Observer by SOF shall be made by written notice to the Company. Notwithstanding anything to the contrary set forth in Section 9.7 of this Shareholders’ Agreement, SOF may not assign its rights under this Section 3.2(b), in 3.1 without the event that any regular or special meeting prior written consent of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Company.
Appears in 1 contract
Sources: Shareholders Agreement (Asia Pacific Wire & Cable Corp LTD)
Board Observer. (a) Priceline The Company agrees that, from and after any such time as the number of shares of Common Stock (including exercised Warrant Shares) held by NV Holdings, Amazon, and any of their respective subsidiaries, equal at least 2,570,567 shares of Common Stock (the “Observer Threshold”), Amazon shall have the right, exercisable by delivering notice to but not the Companyobligation, to designate one observer an employee of Amazon or any of its subsidiaries (any such individual, the “Amazon Observer”) to attend any all meetings of the Board and each committee thereof (whether in person, electronically or telephonically at the “Board Amazon Observer”’s option) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companya non-voting, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1observer capacity, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board which Amazon Observer shall be entitled approved by the Board if such Amazon Observer is not a member of Amazon’s corporate development team or Amazon Air business unit with experience in aspects of Amazon’s air cargo transportation or related services (i) such approval not to receive be unreasonably withheld, conditioned, or delayed). In this respect, the Company shall provide to the Amazon Observer notice of each meeting (including telephonic meetings) such meetings and, subject to Section 5.1(c), a copy of the Board and any committee thereof in meeting materials at the same form and manner time as is given provided to the members of the Board in their capacity as such. The Company acknowledges and agrees that the same materials as and when provided to such members (both before Amazon Observer will not owe any fiduciary duties or after a meetingany other similar obligations or duties, including copies of minutes thereof)in law or equity, including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries subsidiaries, or its shareholders and may act at all times in the best interests of NV Holdings, Amazon, and any of their respective Affiliates.
(b) Notwithstanding the above, or (y) the Amazon Observer shall not be entitled to attend and otherwise participate in, and shall, to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline applicable, waive notice of and recuse themselves from, such meetings or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board portions thereof and shall not be entitled to vote onreceive any information, in each case (i) to the extent relating to Amazon, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby or any dispute related thereto or between Amazon or any of its subsidiaries on the one hand and the Company and any of its subsidiaries on the other hand, (ii) to the extent such information involves company pricing data or competitively sensitive information regarding specific arrangements or transactions with the Company’s customers, vendors or partners, (iii) if the Company believes based on the good faith advice of counsel (which may include in-house legal counsel) that providing such information would violate Applicable Law (in which case the Company shall notify Amazon of such belief and the Company and Amazon shall consult and cooperate in good faith in determining whether the Company is legally prohibited from providing such information to the Amazon Observer), or consent to(iv) where the Company determines based upon good faith advice of counsel (which may include in-house legal counsel) that providing such information (A) would reasonably be expected to jeopardize an attorney-client privilege or cause a loss of attorney work product protection or (B) would violate a contractual confidentiality obligation to any third party; provided, any matters presented that, with respect to clauses (ii) through (iv), the Board. For Company uses commercially reasonable efforts and cooperates in good faith with the avoidance of doubt, subject Amazon Observer to provide the first sentence Amazon Observer with the intended benefits of this Section 3.2(b)3.4. Any Confidential Information provided to the Amazon Observer shall be subject to, in and considered “Confidential Information” under, the Confidentiality Agreement and Amazon will cause the Amazon Observer to comply with the Confidentiality Agreement for the term of such agreement. In the event that any regular or special meeting of the Board is convenedexpiration of the Confidentiality Agreement prior to the termination of this Agreement, Amazon shall enter into a confidentiality agreement on substantially the same terms as the Confidentiality Agreement with the Company. Amazon shall be responsible for any breach of the Confidentiality Agreement by the Amazon Observer.
(c) Promptly upon the occurrence of (i) NV Holdings, Amazon, and any of their respective subsidiaries holding Warrant Shares and vested Warrant Shares subject to exercise pursuant to the Warrant less than the Observer Threshold or (ii) the termination of the Commercial Arrangements, all obligations of the Company shall be deemed with respect to, and all rights of, Amazon and the Amazon Observer pursuant to be in full compliance with the provisions of this Section 3.2(b)3.4 shall terminate and, provided that the Board Observer is given the notice in the same form and manner as, and copies unless otherwise consented to by a majority of the same materials as and when provided to, the members of the Board and Board, Amazon shall cause the Company takes reasonable measures Amazon Observer to facilitate cease attending meetings of the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Board.
Appears in 1 contract
Board Observer. (ai) Priceline From the date of this Agreement until the first anniversary of this Agreement, Act III shall have the right, exercisable by delivering notice right (which right may not be assigned or transferred to the Company, any other Person) to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ policies to serve as an observer (the “Voluntary Observer”) at meetings of the Board; provided that, after the first anniversary in the event either the Investor or the Company, in their respective reasonable discretion, determine that such arrangement is no longer beneficial to the Company, the Voluntary Observer shall be deemed to no longer be an observer of the Board effective upon notice of such determination to the other party; provided, further that Act III and procedures the Company may mutually agree that the Voluntary Observer shall continue beyond such initial one (1) year period until such time as Act III and the Company shall sign mutually agree.
(ii) In the event the Appointed Director is not elected to the Board by the Company’s stockholders at the 2021 Annual Meeting, Act III shall have the right (which right may not be assigned or transferred to any other Person) to designate one (1) additional Observer (the “Primary Observer” and, together with the Voluntary Observer, the “Observers”), who shall be designated by the Investor Representative, to serve as an acknowledgement form stating observer at meetings of the Board, which Primary Observer shall be acceptable to the Company (such acceptance not to be unreasonably withheld, conditioned or delayed); provided that no designee may serve as the Primary Observer if he or she has been convicted of, or pled guilty or no contest to, a felony having as its predicate element fraud or moral turpitude).
(iii) The Company agrees that (A) it will notify each of the Observers of, and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar each Observer may attend, in a non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from voting observer capacity, all or a portion of any meeting or from receiving all or a portion of any materials provided to the member meetings of the Board (x) subject to the below and except to the extent an Observer has been excluded therefrom pursuant to Section 2(a)(v) below) for the purposes of permitting the Observers to have current information with respect to the affairs of the Company and actions taken by the Board. Other than the Board’s annual strategy meeting, annual operating plan (AOP) meeting, meeting immediately following the Company’s annual meeting of stockholders, and such other Board and committee meetings, the purpose(s) of which are strategic in nature, which, for the avoidance of doubt, the Voluntary Observer shall have the option of attending, (but with respect to committee meetings, only those to which non-committee members are invited to attend), upon receipt of such notice, the Voluntary Observer and the Lead Director with respect to meetings of the full Board, or, the relevant committee chair with respect to meetings of any Board committee shall discuss and mutually agree if the Voluntary Observer will attend the relevant meeting. Subject to the forgoing, each Observer shall have the right to be heard at any such meetings, but in no event shall an Observer: (1) be deemed to be a member of the Board; or (2) have the right to vote on any matter under consideration by the Board or otherwise have any power to cause the Company to take, or not to take, any action. As a non-voting observer, each Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials and information (financial or otherwise) that are provided to the presence directors with respect to a meeting or any written consent in lieu of a meeting of the Board (except to the extent an Observer at has been excluded therefrom pursuant to Section 2(a)(v) below).
(iv) If a meeting of the Board is conducted via telephone or other electronic medium (e.g., videoconference), the Observers may attend such meeting via the same medium; provided, however, that each Observer shall not knowingly provide any other person access to such meeting without the Company’s express written consent and, provided further, that each Observer may provide such access to his or her assistant for the limited purpose of managing such Observer’s calendar and other administrative tasks related thereto and any inadvertent access by another person which is promptly remedied upon discovery by such Observer shall not be deemed to breach the provisions of this Section 2(a)(iv).
(v) Notwithstanding the foregoing, the Company may exclude the Observers from access to any material or meeting or portion thereof or the receipt by if the Board Observer determines it is necessary to do so in its reasonable discretion and good faith (which determination may be made without participation of such materials or any portion thereofthe Observers), as the case may be, could reasonably be expected to result in, based on the that (1) upon advice of the Company’s external legal counsel, the loss of such exclusion is reasonably necessary to preserve attorney-client privilege in relation privilege; provided, however, that any such exclusion shall apply only to such portion of the Company, its Subsidiaries material or its Affiliates, or (y) to the extent the subject matter to be discussed at such portion of the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or which would be required to preserve such privilege and not to any other portion thereof, (2) matters related such portion of a meeting is an executive session limited solely to business competition between independent director members of the Company or its SubsidiariesBoard, on independent auditors and/or legal counsel, as the one handBoard may designate, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board any Observer shall not constitute (assuming such Observer were a member of the Board and shall for such determination) would not be entitled to vote onmeet the then-applicable standards for independence adopted by the Commission, the New York Stock Exchange or consent tosuch other exchange on which the Company’s securities are then traded, any matters presented to the Board. For the avoidance of doubt, (3) such material is subject to the first sentence of this Section 3.2(b), in the event a binding confidentiality obligation to a third party that any regular or special meeting of the Board is convened, the Company shall be deemed reasonably determines, after consulting with legal counsel, specifically restricts the Company’s ability to be in full compliance with the provisions of this Section 3.2(b), disclose it to a Board’s observer; provided that the Company uses commercially reasonable efforts to obtain any consents or waivers from the relevant third parties such that the relevant materials may be disclosed or provide the Observer with redacted copies of documents containing such materials, (4) such exclusion is necessary to avoid a conflict of interest or disclosure of competitively sensitive information; provided, however, that any such exclusion shall only apply to such portion of such material or meeting which would be required to avoid such conflict of interest or disclosure of such competitively sensitive information, or (5) such exclusion is necessary for the Company to negotiate transactions with any member of the Investor Group on an arms’ length basis.
(vi) The Company shall reimburse each Observer for all reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at Board Observer is given the notice meetings in the same form manner and manner as, and copies to the same extent as the other members of the Board, in accordance with the Company’s applicable policies. All reimbursements payable by the Company pursuant to this Section 2(a)(vi) shall be paid to the Observer at the same materials time as and when provided to, comparable reimbursement is paid to the members of the Board and Board, as applicable.
(vii) If the Company takes reasonable measures Primary Observer (or replacement thereof) is unable or unwilling to facilitate serve as an observer, resigns as an observer, is removed as an observer, or for any other reason fails to serve as an observer, the Board Observer’s attendance at any such meeting Investor Representative shall have the right, subject to Section 2(b), to designate a person to be a replacement Primary Observer in accordance with this Section 3.2(b2(a)(ii).
Appears in 1 contract
Board Observer. The Majority Holders (aas such group is determined on the Closing Date (as defined in the Exchange Agreement)) Priceline may, at any time on or after the Closing Date and prior to termination of this Agreement pursuant to Section 8(a) (the “Term”), designate one (1) non-voting observer that meets the Independent Director Criteria (as defined herein) (such non-voting observer, the “Board Observer”); provided that such right shall be suspended at any time during which a New Independent Director (as defined herein) has been elected or appointed as a director of the Company pursuant to Section 2. The Company shall appoint the Board Observer as soon as practicable following his or her designation by the Majority Holders and the Board Observer will have the right, exercisable by delivering notice to in the CompanyBoard Observer’s capacity as such, to designate one observer to attend any meetings of the Board and each committee thereof (to receive all materials distributed to members of the “Board Observer”) for so long as Board; provided that (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in will only be allowed to observe meetings of the Companyfull Board and of the Board’s executive committee or other committee serving a similar function, if any, thereof and not any meetings of any other committee thereof, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The will in no circumstances have any right to vote, consent to or take any action in his or her capacity as Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) or on behalf of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (Ciii) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (or any executive committee or other committee serving a similar function, if any, thereof) or portion thereof and may be prohibited from receiving any related materials if (x) to the extent that the presence of the Board Observer at determines in good faith that such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected exclusion is necessary to result in, based on the advice of the Company’s external counsel, the loss of preserve attorney-client privilege in relation client, work product or similar privilege, or to the Company, its Subsidiaries or its Affiliatescomply with applicable law, or (y) if the Board determines in good faith that there exists, with respect to the extent the subject matter to be discussed at of any such meeting or the meeting concerns (1) related materials, an actual or potential conflict of interest between the Board Observer or any Affiliate of the Board Observer and the Company’s rights under agreements with Priceline or its Subsidiaries or ; and (2iv) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute agree, pursuant to a member confidentiality agreement that is consistent with, and no more restrictive than, the terms described herein (including, without limitation, the terms and conditions set forth in Sections 4(b) and (c) of the Board this Agreement) and shall not be entitled to vote on, or consent to, any matters presented otherwise in form and substance acceptable to the Board. For the avoidance of doubtCompany in its reasonable discretion (each, subject to the first sentence of this Section 3.2(ba “Confidentiality Agreement”), in the event that to keep confidential any regular or special meeting of the Board is convened, the Company shall be deemed Confidential Information (as defined herein) prior to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at receiving any such meeting in accordance with this Section 3.2(b)material or attending any such meetings.
Appears in 1 contract
Sources: Director Nomination Agreement (Ultra Petroleum Corp)
Board Observer. (a) Priceline The Incremental Term Loan Lenders shall have the right, exercisable by delivering notice to the Company, right to designate one observer to attend any meetings of the Board and each committee thereof representative (the “Board Observer”) for so long as to attend (to the extent provided below) all meetings of (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in of Directors of the CompanyBorrower, (ii) Priceline the Board of Directors of each of the Borrower’s material subsidiaries and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply any committee of any such Board of Directors, in all material respects with the provisions case of Section 3.1(aclauses (ii) and (iv) iii), solely to the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all extent such committee or Board of Directors has been delegated (a “Board Delegation”), directly or indirectly, material respects with decision-making authority by the provisions thereof Board of Directors of the Borrower (collectively, the “Relevant Meetings”) as a non-voting observer by notifying the Borrower in writing or by directing the Administrative Agent in writing to notify the Borrower in writing of such designation; provided, however, that the Borrower shall provide prior written notice to the Incremental Term Loan Lenders of any such Board Observer Right”).
(b) Delegation. The Board Observer shall be entitled to (i) to receive prior written notice of each meeting (including telephonic meetings) of the Board and any committee thereof all Relevant Meetings in the same form manner and manner as with the same amount of advance notice that is given provided to the all other members of the Board of Directors of the Borrower, its material subsidiaries and the same materials as and when provided to any committees of such members (both before or after a meeting, including copies Board of minutes thereof), including materials provided other than Directors in connection with a meetingsuch Relevant Meetings, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretionreceive all materials (which, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For for the avoidance of doubt, subject shall exclude legal materials) provided to the first sentence members (contemporaneously with other members’ receipt of this Section 3.2(b), in the event that any regular or special meeting such materials) of the Board of Directors of the Borrower, its material subsidiaries and any committees of such Board of Directors in connection with such Relevant Meetings, (iii) attend (whether in person, by telephone, or otherwise) all Relevant Meetings as a non-voting observer, and (iv) receive reimbursement for reasonable fees and expenses incurred in connection with attending such Relevant Meetings; provided further, that the Borrower reserves the right to exclude such Observer from access to any materials or meetings or portions thereof (only if the Observer is convenednotified of such withholding) if the Board of Directors votes in good faith after advice of outside legal counsel, that such exclusion is necessary (taking into account any confidentiality agreements that such Observer has executed or is willing to execute) to properly exercise its fiduciary duties or maintain attorney-client privilege. The Borrower shall cooperate with the Company Observer in good faith to limit to the maximum extent reasonably possible the degree to which the Observer will be excluded from such portions of such meetings or receiving such materials. Such Observer shall be deemed to be in full compliance with removed upon the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies earlier of the same materials as and when provided to, Incremental Term Loan Lenders (x) providing written notice to the members of Borrower or (y) directing the Board and Administrative Agent in writing to notify the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting Borrower in accordance with this Section 3.2(b)writing.
Appears in 1 contract
Sources: Credit Agreement (Affirmative Insurance Holdings Inc)
Board Observer. The Majority Holders (aas such group is determined on the Closing Date (as defined in the Exchange Agreement)) Priceline shall have may, at any time on or after the rightClosing Date and prior to termination of this Agreement pursuant to Section 8(a) (the “Term”), exercisable by delivering notice to the Company, to designate one (1) non-voting observer to attend any meetings of that meets the Board and each committee thereof Independent Director Criteria (as defined herein) (the “Board Observer”); provided that such right shall be suspended at any time during which a New Independent Director (as defined herein) for so long has been elected or appointed to the Board pursuant to Section 2. The Company shall appoint such Board Observer as soon as practicable following his or her designation by the Majority Holders, and such Board Observer will have the right, in such Board Observer’s capacity as such, to attend meetings of the Board and to receive all materials distributed to members of the Board; provided that (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in will only be allowed to observe meetings of the Companyfull Board and of the Board’s executive committee or other committee serving a similar function, if any, thereof and not any meetings of any other committee thereof, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The will in no circumstances have any right to vote, consent to or take any action in his or her capacity as Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) or on behalf of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (Ciii) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (or any executive committee or other committee serving a similar function, if any, thereof) or portion thereof and may be prohibited from receiving any related materials if (x) to the extent that the presence of the Board Observer at determines in good faith that such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected exclusion is necessary to result in, based on the advice of the Company’s external counsel, the loss of preserve attorney-client privilege in relation client, work product or similar privilege, or to the Company, its Subsidiaries or its Affiliatescomply with applicable law, or (y) if the Board determines in good faith that there exists, with respect to the extent the subject matter to be discussed at of any such meeting or the meeting concerns (1) related materials, an actual or potential conflict of interest between the Board Observer or any Affiliate of the Board Observer and the Company’s rights under agreements with Priceline or its Subsidiaries or ; and (2iv) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute agree, pursuant to a member confidentiality agreement that is consistent with, and no more restrictive than, the terms described herein (including, without limitation, the terms and conditions set forth in Sections 4(b) and (c) of the Board this Agreement) and shall not be entitled to vote on, or consent to, any matters presented otherwise in form and substance acceptable to the Board. For the avoidance of doubtCompany in its reasonable discretion (each, subject to the first sentence of this Section 3.2(ba “Confidentiality Agreement”), in the event that to keep confidential any regular or special meeting of the Board is convened, the Company shall be deemed Confidential Information (as defined herein) prior to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at receiving any such meeting in accordance with this Section 3.2(b)material or attending any such meetings.
Appears in 1 contract
Board Observer. Borrower shall hold regular meetings of its board of directors (aor equivalent governing body) Priceline at least once per calendar quarter and shall have permit all members of management reasonably requested by Collateral Agent to attend such meetings and be available to discuss the right, exercisable by delivering notice to the Company, affairs of Borrower and it Subsidiaries. Collateral Agent shall be entitled to designate one (1) observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as of the board of directors (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetingsor equivalent governing body) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meetingBorrower, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either which Observer shall receive (at the same time and in person or by telephonic conferencethe same manner provided to the directors) notice of and copies of all materials provided to directors in connection with, and shall be entitled to participate fully in attend, at Borrower’s expense, all discussions among directors meetings of the Board at board of directors (or equivalent governing body) of such meetingsLoan Party, and any committee thereof. Collateral Agent shall also receive (at the Company covenants to take reasonable measures to facilitate such attendance same time and discussion; in the same manner provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies directors) notice of and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 copies of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member directors in connection with any actions to be taken by written consent of the Board board of directors (xor equivalent governing body) of each Loan Party, and any committee thereof. Borrower shall reimburse Collateral Agent for all reasonable expenses (including all reasonable travel, meal and lodging expenses) incurred by the Observer (and any such additional guests) in connection with attending any meetings described above. If an issue is to be discussed or otherwise arises at any meeting of the extent that board of directors or committee thereof which, in the reasonable good faith judgment of the board of directors, is not appropriate to be discussed in the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected in order to result in, based on the advice of the Company’s external counsel, the loss of preserve an attorney-client privilege in relation or to discuss the Company, its Subsidiaries Obligations or its Affiliates, or (y) to any other matter involving the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition relationship between the Company or Borrower and its Subsidiaries, on the one hand, and Priceline or its Subsidiariesthe Collateral Agent and/or Lenders, on the other hand, in then such issue may be discussed without the People’s Republic Observer being present, so long as the Observer is given notice of China); it being understood the occurrence of such judgment by the board of directors and that the Board Observer shall not constitute a member of the Board and is being excused. The Observer shall not be entitled to vote on, or consent to, on any matters presented submitted to the Boardboard of directors or any committee. For The appointment of the avoidance of doubt, subject Observer to the first sentence board of this Section 3.2(b), in directors shall not limit the event that any regular or special meeting ability of the Board board of directors to take action without a meeting so long as such action is convened, permissible under applicable law and this Agreement and prompt notice of such action is provided to the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Collateral Agent.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Quadrant 4 System Corp)
Board Observer. (ai) Priceline From the date of this Agreement and for so long as no Resignation Event has occurred, the Investors shall have the right, exercisable by delivering notice to the Company, right to designate one (1) person (the “Observer”) to serve as an observer at meetings of the Company’s board of directors (the “Board”) and at meetings of the Governance and Nominating Committee of the Board (the “Nominating Committee”). Any Observer shall meet the Independence Criteria described in clause (vi) below and shall be designated by the “Investor Representative” who shall be ▇▇▇ ▇▇▇▇▇▇ or any replacement thereof approved by BJ’s Act III. Notwithstanding anything in this Agreement to the contrary, the Investor Representative shall not have a right to designate a person to serve as an Observer or have any Observer attend any meetings of the Board and each committee thereof (the “Board Observer”) or Nominating Committee for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or Suggested Nominee shall be serving as a portion of any materials provided to the member of the Board (xin either case, such member of the Board, an “Investor Approved Board Member”); provided, however, that if an Investor Approved Board Member is serving on the Board but not on the Nominating Committee, the Investor Approved Board Member shall have the right to serve as an Observer with respect to meetings of the Nominating Committee.
(ii) The Company agrees that it will invite the Observer to attend, in a non-voting observer capacity, all meetings of the Board and the Nominating Committee for the purposes of permitting the Observer to have current information with respect to the affairs of the Company and actions taken by the Board or the Nominating Committee. The Observer shall have the right to be heard at any such meetings, but in no event shall the Observer: (1) be deemed to be a member of the Board or the Nominating Committee; or (2) have the right to vote on any matter under consideration by the Board or the Nominating Committee or otherwise have any power to cause the Company to take, or not to take, any action. As a non-voting observer, the Observer will also be provided (concurrently with delivery to the directors of the Company and members of the Nominating Committee and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials and information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of a meeting of the Board or the Nominating Committee (except to the extent that the presence Observer has been excluded therefrom pursuant to clause (iv) below).
(iii) If a meeting of the Board or the Nominating Committee is conducted via telephone or other electronic medium (e.g., videoconference), the Observer at may attend such meeting via the same medium; provided, however, that Observer shall not knowingly provide any other person access to such meeting without the Company's express written consent and, provided further, that inadvertent access by another person which is promptly remedied upon discovery by the Observer shall not be deemed to breach the provisions of this Section 1(a)(iii).
(iv) Notwithstanding the foregoing, the Company may exclude the Observer from access to any material or any meeting or portion thereof if the Board or the receipt by Nominating Committee determines it is necessary to do so in its reasonable discretion.
(v) good faith (which determination may be made without participation of the Board Observer of such materials or any portion thereofObserver), as the case may be, could reasonably be expected to result in, based on the upon advice of the Company’s external counsel, that (1) such exclusion is reasonably necessary to preserve the loss of attorney-client privilege in relation between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the Company, its Subsidiaries material or its Affiliates, or (y) to the extent the subject matter to be discussed at such portion of the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries which would be required to preserve such privilege and not to any other portion thereof, or (2) matters related such portion of a meeting is an executive session limited solely to business competition between independent director members of the Company or its SubsidiariesBoard, on independent auditors and/or legal counsel, as the one handBoard may designate, and Priceline or its Subsidiaries, on the other hand, in Observer (assuming the People’s Republic of China); it being understood that the Board Observer shall not constitute were a member of the Board for such determination) would not meet the then-applicable standards for independence adopted by the Securities Exchange Commission, the Nasdaq Stock Market or such other exchange on which the Company’s securities are then traded.
(vi) The Company shall compensate the Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if the Observer were an independent member of the Board and a member of the Nominating Committee, as such cash compensation may be modified from time to time; provided, however, in no event shall not the Observer be entitled to vote on, or consent to, any matters presented compensation with respect to any period for which an Investor Approved Board Member has received compensation as an independent member of the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convenedFurther, the Company shall be deemed reimburse the Observer for all reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at Board and Nominating Committee meetings. All compensation and reimbursements payable by the Company pursuant to be in full compliance with the provisions of this Section 3.2(b), provided that 1(a)(v) shall be paid to the Board Observer is given the notice in at the same form and manner as, and copies of the same materials time as and when provided to, comparable compensation or reimbursement is paid to the members of the Board Board.
(vii) Any Observer shall (a) have business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (b) be reasonably acceptable to the Nominating Committee and the Company takes reasonable measures Board, (c) qualify as “independent” pursuant to facilitate Nasdaq Stock Market listing standards (or the Board standards of such other exchange on which the Company’s securities are then traded) and satisfy any other criteria applicable to “independent” directors under such listing standards and under applicable law and the rules and regulations of the Securities and Exchange Commission, (d) have provided the items that would be required of an independent director pursuant the Company’s normal director intake procedures (including completion of a standard director and officer questionnaire and completion of a background check), and (e) not serve as a director or officer of any company that owns, operates or franchises casual dining restaurants; provided that, for purposes of clause (e), such casual dining restaurants shall not include any fine dining restaurants, any fast casual restaurants or any casual dining restaurants with fewer than 25 locations and shall not include serving as a director or officer of Trust LLC, BJ’s Act III or Act III Holdings, LLC or any of its Subsidiaries (clauses (a)-(e), the “Independence Criteria”).
(viii) Within ten (10) business days of his or her name being submitted to the Nominating Committee, the Nominating Committee shall determine whether a proposed Observer meets the Independence Criteria, and shall promptly notify the Investor Representative of its decision. In the event the Nominating Committee does not accept a proposed Observer’s attendance , the Investors shall have the right to recommend a substitute Observer whose appointment shall be subject to the procedures described above.
(ix) If any Observer is unable or unwilling to serve as an observer, resigns as an observer, is removed as an observer, or for any other reason fails to serve or is not serving as an observer at any time prior to the occurrence of a Resignation Event, the Investor Representative shall have the right to designate a person to be a replacement Observer (any such meeting replacement Observer shall be referred to as a “Replacement Observer”). Any Replacement Observer will be considered and approved or rejected in accordance with this the process specified in Section 3.2(b1(a)(vii).
Appears in 1 contract
Board Observer. (a) Priceline shall 3.1 To the extent that the Manager is entitled to have a Board Observer present at the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least or any committees of the Board Observer Threshold Shareholding in the Company(collectively, (ii) Priceline and its Subsidiaries comply in all material respects with "Board Meetings"), the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)this Article 3 will apply.
(b) 3.2 The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either (in person or by telephonic conferencetelephone, and video conference or other means) each Board Meeting (except in camera sessions to participate fully in all discussions among directors the extent members of management of the Manager are excluded from such in-camera sessions), whether such Board at such meetingsMeetings are held in person, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided thatby telephone, notwithstanding video conference or any other provision of this Section 3.2, (A) the means.
3.3 The Board Observer shall agree have the right to hold take part in confidence all information provided (provided that discussions and deliberations of matters brought before the Board.
3.4 The Board Observer shall not be restricted entitled to vote on any matters brought before the Board or any committee of the Board.
3.5 The Corporation shall, in advance of each Board Meeting, send to the Board Observer all notices, consents, minutes, documents and other information and materials that it sends to members of the Board for purposes of the applicable Board Meeting, in their capacities as such (collectively, the "Board Materials"), at substantially the same time and in substantially the same manner (or as close as may be reasonably practicable thereto) as the Corporation sends the Board Materials to members of the Board. Notwithstanding the foregoing, in no event shall the failure to provide the Board Materials as described above in any way invalidate any action taken at a Board Meeting.
3.6 The Corporation shall deliver to the Board Observer copies of any written consent resolutions proposed to be adopted by the Board or any committee of the Board, at the same time as such written consent resolutions are circulated to members of the Board or any committee of the Board for signature, and shall advise the Board Observer as to the approval of such written consent resolutions.
3.7 The Board Observer shall not be entitled to any remuneration for acting in such capacity; provided, however that all reasonable expenses of the Board Observer shall be borne by the Corporation, to the same extent that such expenses are borne by the Corporation for members of the Board. For greater certainty, the Manager hereby acknowledges and agrees that the Corporation shall have no obligation to pay directors fees or similar compensation or issue any options or other securities convertible into shares of the Corporation to the Board Observer in the Board Observer's capacity as such.
3.8 The Manager acknowledges that as a result of attending Board Meetings and receiving the Board Materials, the Board Observer will have access to confidential communications information of the Corporation, the disclosure of which could be detrimental to the interests of the Corporation. The Manager agrees that, subject to the provisions of this Agreement, it shall cause the Board Observer to: (i) hold all Board Materials and all other information in respect of the Corporation provided to him or discussions with her or learned by him or her in his/her capacity as Board Observer (including materials prepared by the confidential provision of Board Observer utilizing Board Materials or such other information) in strict confidence; (ii) not disclose, directly or indirectly, any such information to Priceline any person, except as permitted by this Agreement; and (iii) use any such information solely for the purposes reasonably related to the Manager acting as the manager pursuant to the Management Agreement or related to the interests of the Manager or its Subsidiaries Affiliates as holders of Common Shares; (iv) comply with all applicable securities laws that may prohibit a Person who has material, non-public information in respect of the Corporation or any other information provided to him or her or learned by him or her in his/her capacity as Board Observer from trading in securities of the Corporation or any other entity to which such information relates; and (v) comply with all trading restrictions or black-out periods imposed by the Board. The Board Observer shall be entitled to disclose all such information (or any portion thereof) to its Affiliates and their respective directors, officers, employees, accountantsrepresentatives, agents, counsel lawyers, consultants, financial and other representatives)advisors (collectively, (Bthe "Representatives") such Board Observer provided that the Manager shall cause its Affiliates and Priceline shall their Representatives to treat the information as confidential in a manner consistent with this Agreement and the Manager will be subject liable for any loss or damage resulting from a failure of its Affiliates and their Representatives to do so. This confidentiality provision will survive the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures termination of this Agreement.
3.9 The confidentiality obligations set out in Section 3.8 hereof shall not restrict Priceline apply to information that: (i) was in the public domain at the time of its communication or disclosure or thereafter becomes part of the public domain through no fault of the Manager, its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established their Representatives, as applicable; (ii) was in accordance with Rule 10b5-1 the possession of the Exchange Act) and (C) the Board Observer may be excluded from all Manager, its Affiliates or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereoftheir Representatives, as the case may beapplicable, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns time of its communication or disclosure and was not acquired from the Corporation; (1iii) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic was received from a third party without an obligation of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b)confidentiality, provided that the Board Observer Manager, its Affiliates or their Representatives, as applicable, has no reason to believe such third party was under an obligation of confidentiality with respect to the information; or (iv) is given the notice in the same form and manner as, and copies required by law or an order of the same materials as and when provided to, the members a court of the Board and the Company takes reasonable measures competent jurisdiction to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)be disclosed.
Appears in 1 contract
Sources: Governance Agreement
Board Observer. (a) Priceline shall have Section 1.01 The Company hereby agrees that, from and after the rightClosing, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline Holder and its Subsidiaries beneficially own affiliates in the aggregate are the beneficial owners of at least the Board Observer Threshold Shareholding in four and nine-tenths percent (4.9%) of the Company, ’s common stock then outstanding (iithe “Minimum Ownership Interest”) Priceline the Company shall invite a person designated by Holder (the “Observer”) to attend meetings of the Boards of Directors (the “Boards”) of the Company and its Subsidiaries comply wholly owned subsidiary Hanover Community Bank (the “Bank”), as applicable, in all material respects with a nonvoting, nonparticipating observer capacity. The designation of the provisions Observer by the Holder must be reasonably acceptable to the Company. Company ▇▇▇▇▇▇ agrees that the designation of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions any of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇ B.V. complies in all material respects with or any Principal or Managing Principal of the provisions thereof (Holder as the “Board Observer Right”).
(b) will be deemed acceptable to the Company. The Board Observer shall be entitled (i) not have any right to receive vote on any matter presented to the Boards, or any committee thereof. The Company shall give the Observer written notice of each meeting (including telephonic meetings) of the Board Boards at the same time and any committee thereof in the same form and manner as is given to the members of the Board Boards, shall provide the Observer with all written materials and other information given to members of the Boards at the same time such materials as and when provided information are given to such members (both before provided, however, that the Observer shall not be provided any confidential supervisory information) and shall permit the Observer to attend as an observer at all meetings thereof. In the event the Company, or after the Bank proposes to take any action by written consent in lieu of a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee Company or the Bank shall give written notice thereof shall conduct any business by written consent without giving such prior notice to the Board Observer prior to the effective date of such consent describing the nature and a copy substance of such action and including the proposed consenttext of such written consents. Notwithstanding anything to the contrary contained in this Section 1.01, any exhibits(i) the Observer may be excluded from executive sessions comprised solely of independent directors, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretionCompany, Bank and the Boards, shall have the right to attend each Board withhold any information and to exclude the Observer from any meeting or meeting portion thereof if doing so is, in the advice of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2counsel, (A) necessary to protect the Board attorney-client privilege between such party and counsel, or (B) necessary to avoid a violation of any applicable Law or any fiduciary requirements under applicable Law, provided that the Company or the Bank, as applicable, shall use commercially reasonable efforts to provide such information to the Observer shall in a manner that does not compromise or violate (as applicable) such attorney-client privilege, fiduciary requirements or applicable Law. If Holder no longer has a Minimum Ownership Interest, Holder will have no further rights under this Section 1.01.
Section 1.02 Notwithstanding anything to the contrary contained in this Article I, the Boards may exclude the Observer from portions of meetings of the Boards to the extent that the Boards will be discussing (i) any matters directly related to Holder, or (ii) any exam or other confidential correspondence with the Federal Reserve, the FDIC or the New York State Department of Financial Services, in each case to the extent required by applicable law or regulation as reasonably determined by the Company’s legal counsel.
Section 1.03 Holder covenants and agrees to hold any information obtained from its Observer in confidence, and to cause its Observer to agree to hold in confidence and to act in a fiduciary manner with respect to all information provided to such Observer, in each case except to the extent that such information (provided i) was previously known by or in the possession of such party on a nonconfidential basis, (ii) is or becomes in the public domain through no fault of such party, (iii) is later lawfully acquired from other sources by the party to which it was furnished or (iv) is independently developed by such party without the use of such information; provided, however, that the Board foregoing will not prohibit the Observer shall not be restricted in from sharing any confidential communications information with the Holder. Each of the parties to this Agreement hereby acknowledges that they are aware, and will ensure that their representatives and affiliates are aware, that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or discussions with selling securities of such company, or the confidential provision of from communicating such information to Priceline any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities, and its Subsidiaries in furtherance thereof the Holder will, and their respective directorsthe Holder will cause the Observer to, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to comply with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)Policy.
Appears in 1 contract
Sources: Board Observation Agreement (Hanover Bancorp, Inc. /NY)
Board Observer. (a) Priceline During the Investor Rights Period, the Lead Purchaser shall have the right, exercisable by delivering notice to the Company, also be entitled to designate one (1) non-voting observer (the “Observer”) to the Board to attend any all meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline committees and its Subsidiaries beneficially own at least the Board subcommittees thereof, which Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and shall initially be ▇▇▇▇ ▇▇▇▇▇▇▇.▇▇▇ B.V. complies or such other employee of the Lead Purchaser or affiliate thereof designated by the Lead Purchaser (including in all material respects the event any designee is unable to serve, or no longer serves, as the Observer for any reason), provided that the Observer may not be changed more than once per calendar year without the consent of the Company (except that no consent shall be required if the change is due to the prior Observer’s death, disability, or termination of employment with the provisions thereof (Lead Purchaser or its affiliates). Notwithstanding anything herein to the “contrary, to the extent required by the rules and interpretive guidance of the Trading Market, each of the following committees of the Board shall be entitled to exclude the Observer Right”)from attending any meeting, or portion thereof, of such committee in its discretion: the Audit Committee, the Nominating and Corporate Governance Committee and the Compensation Committee.
(b) The Board will give the Observer shall be entitled (i) the same prior notice given to receive notice of each meeting (including telephonic meetings) member of the Board and any committee thereof in a manner permitted by the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior Governing Documents for notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetingstime and place of any proposed meeting, and provided, however, that the Observer shall enter into a customary confidentiality agreement with the Company covenants pursuant to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) which the Board Observer shall will agree to hold in confidence all information documents or materials so provided (provided that to the Board Observer on terms satisfactory to the Company before being granted the rights contained in this Section 7.2, and the Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information agree to Priceline and its Subsidiaries and their respective directorsadhere to all applicable Board policies, officersincluding, employeeswithout limitation, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies Policy. The Observer will be entitled to be present in person or by means of telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other and procedures and shall sign an acknowledgement form stating that he or she and it agree will be entitled to comply with participate in all discussions conducted at such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that meeting, but the presence of the Observer shall not be required for purposes of establishing a quorum. In no event shall the Observer (i) have the right to propose or offer any motions or resolutions to the Board Observer at such meeting or committees and subcommittees thereof; or (ii) have the right to vote on any portion thereof or the receipt matter under consideration by the Board Observer of such materials or any portion thereofcommittees and subcommittees thereof or otherwise have any power to cause the Company to take, as the case may beor not to take, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation any action. The Company will deliver to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same all materials as and when provided to, that may be distributed from time to time to the members of the Board (in their capacity as such) at such time as such materials are so distributed to them, including copies of any written consents, and the Observer shall otherwise be given copies of all materials, including access to all electronic portals and materials, given or made available to other members of the Board, in order to afford the Observer the same access as all other members of the Board. Notwithstanding anything herein to the contrary, the Company takes reasonable measures to facilitate may withhold information or materials from the Observer or exclude the Observer from any meeting or portion thereof if the Board Observer’s determines, acting in good faith, that access to such information or materials or attendance at such meeting (or portion thereof) would (i) adversely affect the solicitor-client or work product privilege between the Company and its counsel (provided that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege); (ii) such exclusion is necessary to avoid a conflict of interest or disclosure that is restricted by any agreement to which the Company or any of its affiliates is a party or otherwise bound with any other person; or (iii) the Observer or the Lead Purchaser is in accordance material breach of this Agreement, any other agreement associated with this Section 3.2(b)Agreement or the Purchase Agreement, or the Company’s policies applicable to the Lead Purchaser or the Observer and such breach remains uncured.
Appears in 1 contract
Board Observer. (a) Priceline shall have Commencing upon Closing and ending on the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings earlier of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least three (3) years from the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials Closing Date and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇time as P▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline (the “Board Observer”) is no longer employed by TheMaven or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of Affiliate thereof, including the Exchange Act) and (C) Surviving Corporation, the Board Observer shall have the right to attend all meetings of the board of directors of TheMaven (the “TheMaven Board”) and each of its committees, in a non-voting, observer capacity. The Board Observer may be excluded from participate fully in discussions of all or a portion of any meeting or from receiving all or a portion of any materials provided matters brought to the member of the TheMaven Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion committee thereof, as the case may be, for consideration, but in no event shall the Board Observer (i) be deemed to be a member of the TheMaven Board or any committee thereof, (ii) without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to TheMaven or its stockholders by virtue of the Board Observer possessing and/or exercising any rights under this Section 4.9 or (iii) have the right to propose or offer any motions or resolutions to the TheMaven Board or any committee thereof. TheMaven shall (i) facilitate the attendance of the Board Observer at meetings of TheMaven Board and each committee thereof in the same manner as the members of TheMaven Board, including by any means contemplated by the by-laws of TheMaven as in effect from time to time (including, for the avoidance of doubt, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other) and (ii) provide to the Board Observer copies of all notices (including notices of meetings of TheMaven Board or any committee thereof), minutes, consents (including actions by unanimous written consent in lieu of a meeting) and other materials that it provides to members of TheMaven Board (collectively, "Board Materials"), including any draft versions, proposed written consents, and exhibits and annexes to any such materials, at the same time and in the same manner as such information is delivered to the Board members. Notwithstanding anything to the contrary in this Section 4.9, the Board Observer shall (i)(A) be excluded from the applicable portion of any meeting and (B) not be provided with any Board Materials, in each case of (A) and (B), to the extent TheMaven Board determines in good faith that attendance at a portion of a meeting of TheMaven Board or committee thereof or the provision of such Board Materials could jeopardize the attorney-client privilege or contravene any Legal Requirements or Contract to which TheMaven is a party that is in existence as of the date of this Agreement, without giving effect to any amendments thereto entered into after the date of this Agreement; provided, however, that in the event that the attendance of the Board Observer at such portion of such meeting and/or the provision of such Board Materials could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of violate any such Legal Requirement or Contract or jeopardize any attorney-client privilege privilege, TheMaven and the Board Observer shall take all reasonable measures to permit the compliance with such obligations in relation a manner that avoids any such harm or consequence and (ii) prior to exercising any rights under this Section 4.9, enter into a confidentiality agreement with TheMaven containing terms substantially similar to those required by TheMaven of the other members of TheMaven Board in their capacities as such. TheMaven agrees (i) to indemnify the Board Observer, and to pay in advance any expenses of the Board Observer incurred in defending a civil or criminal action, suit or proceeding, to the Companysame extent provided by TheMaven to members of TheMaven Board under its certificate of incorporation and by-laws as in effect from time to time with respect to such members’ activities as members of TheMaven Board (provided, its Subsidiaries or its Affiliateshowever, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member have any such rights of indemnification or advancement of expenses with respect to any indemnifiable Losses claimed by any of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that TheMaven Indemnified Persons against the Board Observer is given in his capacity as an Indemnity Stockholder pursuant to Section 10) and (ii) TheMaven’s obligations under clause (i) constitute third-party rights granted to the notice in the same form Board Observer by TheMaven and manner as, and copies do not constitute rights to indemnification or advancement of expenses as a result of the same materials Observer serving as and when provided toa director, the members officer, employee or agent of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)TheMaven.
Appears in 1 contract
Sources: Merger Agreement (theMaven, Inc.)
Board Observer. Lender shall be entitled to designate one (a1) Priceline shall have the right, exercisable individual appointed by delivering Lender by written notice to the CompanyLoan Parties from time to time (the “Observer”). The Loan Parties agree that so long as any balance is due to Lender under this Loan Agreement, to designate one observer Lender shall be invited to attend any all meetings of the Board board of directors (or equivalent governing body) of each Loan Party, and each committee any committees thereof (collectively, the “Boards” and individually, a “Board”), in a non-voting observer capacity. Each Loan Party shall give the Observer written notice of each meeting of each Board Observer”) for so long as (i) Priceline at the same time and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companysame manner as the members of such Boards. Subject to the confidentiality restrictions described below, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”).
(b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) all written materials and other information given to members of the Board and any committee thereof Boards, in connection with such meeting or otherwise, at the same form time such materials and manner as is information are given to the members of the Board Boards. Notwithstanding the preceding, each Loan Party reserves the right to withhold any information and the same materials as and when provided to exclude such members (both before or after a Observer from any meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice is determined in good faith by a majority of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the applicable Board or the chairman of any committee thereof to be necessary for purposes of confidentiality or attorney-client privilege, provided that (i) such Loan Party gives the Observer and the Company takes Lender prior written notice of such exclusion, which notice shall include a general summary of what the Observer is being excluded from and (ii) any meeting from which the Observer is excluded only addresses the issues presented in the notice provided to the Lender and Observer contemplated in clause(i) above. If a Loan Party proposes to take any action by written consent in lieu of a meeting of any of the Boards, such Loan Party shall give written notice thereof to the Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents. Each Loan Party agrees that all matters concerning strategy, financial health or performance (including, but not limited to, the annual budget), financings, fundamental changes (including, but not limited to, sales or other dispositions of all or a substantial portion of any business), changes in the business and business activities of the Loan Parties or offerings of securities with respect to any Loan Party shall be decided by the Boards or the Observer shall be invited to the board of directors (or equivalent) meeting of such other entity to the extent such matters are being discussed in substantial detail at such board meeting. The Loan Parties shall pay the reasonable measures out-of-pocket costs and expenses of the Observer incurred in connection with attending such meetings of the Boards. Lender agrees, and Lender will cause any Observer of Lender to facilitate the Board Observer’s attendance at agree, to hold in confidence with respect to all information so provided. The confidentiality provisions hereof will survive any such meeting in accordance with termination of this Section 3.2(b)Loan Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement
Board Observer. (a) Priceline So long as the DLJIP Entities shall have beneficially own in aggregate at least 51% of the rightnumber of shares of the Senior Preferred Stock beneficially owned by them as of the date of the Amended Agreement, exercisable by delivering (i) the Company shall give DLJ Investment Partners II, L.P. written notice to the Company, to designate one observer to attend any meetings of each meeting of the Board and each committee thereof (at the “Board Observer”) for so long as (i) Priceline same time and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companysame manner as notice is given to the directors, (ii) Priceline the Company will permit one representative of the DLJIP Entities (a "BOARD REPRESENTATIVE") to attend and its Subsidiaries comply fully participate in all material respects with meetings of the provisions of Section 2.1, Board and all committees thereof and (iii) Priceline and its Subsidiaries comply in all material respects the Company shall consult with the provisions Board Representative with respect to any fundamental change in the nature of Section 3.1(a) the Company's business; PROVIDED that the Board Representative shall have no right to vote on any resolutions or other matters upon which members of the Board may vote; and (iv) PROVIDED FURTHER that in the Marketing Agreement is case of telephonic meetings conducted in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects accordance with the provisions Company's bylaws and applicable law, the Board Representative shall be given the opportunity to listen and fully participate in such telephonic meeting. The Board Representative shall also be provided with all written materials and other information (including, without limitation, copies of minutes of meetings) given to directors in connection with such meetings at the same time such materials and information are given to the directors. If the Company proposes to take any action by written consent in lieu of a meeting of the Board or any committee thereof, the Company shall give written notice thereof (to the “Board Observer Right”)Representative promptly following the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company shall pay the reasonable out-of-pocket expenses of the Board Representative incurred in connection with attending such board and committee meetings.
(b) The Board Observer So long as the DLJIP Entities shall be entitled beneficially own in aggregate at least 51% of the number of shares of the Senior Preferred Stock beneficially owned by them as of the date of the Amended Agreement, at any reasonable time during normal business hours and from time to time, but not more frequently than once in any six-month period, upon five (i5) days written notice, the Company will permit any one or more of the DLJIP Entities to receive notice examine the books and records of each meeting the Company; PROVIDED that the DLJIP Entities shall use all reasonable efforts to ensure that any such examination or visit results in a minimum of disruption to the operations of the Company.
(including telephonic meetingsc) Prior to receiving any written information or materials referred to in Section 2.06(a), attending any meetings of the Board and or any committee thereof of its committees, or examining any books or records pursuant to Section 2.06(b), each of the DLJIP Entities shall be required to execute a confidentiality agreement in the same form and manner as is given substance satisfactory to the members of the Board Company and the same materials as DLJIP Entities and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in use any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as information only for the case may be, could reasonably be expected to result in, based on purpose of evaluating and monitoring the advice investment of the Company’s external counsel, the loss of attorney-client privilege DLJIP Entities in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, Opco and otherwise in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b)applicable law.
Appears in 1 contract
Sources: Investors' Agreement (Decrane Aircraft Holdings Inc)
Board Observer. (a) Priceline Following the receipt of SoftBank CFIUS Approval and subject to Section 6.05 and the requirements set forth in the NSA, SoftBank shall have the exclusive right, exercisable by delivering notice to for so long as SoftBank owns the CompanySoftBank Floor Amount, to designate one observer natural person to attend any all meetings of the Board and each committee thereof of Directors in a non-voting observer capacity (the “SoftBank Board Observer”) ). Following the receipt of Honda CFIUS Approval and subject to Section 6.05, Honda shall have the exclusive right, for so long as Honda owns the Honda Floor Amount, to designate one natural person to attend all meetings of the Board of Directors in a non-voting observer capacity (the “Honda Board Observer”, and together with the SoftBank Board Observer, the “Board Observers”). The following terms and conditions will apply to the Board Observers:
(a) The Company shall deliver to (i) Priceline and its Subsidiaries beneficially own at least the SoftBank Board Observer Threshold Shareholding copies of all reports, notices, minutes, consents, actions taken or proposed to be taken without a meeting and other materials in each case (and to the Companyextent) that the Company provides the same to the SoftBank Director, each such delivery to be made concurrently with the delivery of such materials to the SoftBank Director and (ii) Priceline the Honda Board Observer copies of all reports, notices, minutes, consents, actions taken or proposed to be taken without a meeting and its Subsidiaries comply other materials in all material respects each case (and to the extent) that the Company provides the same to the Board of Directors, subject to the restrictions set forth in Section 6.14, each such delivery to be made concurrently with the provisions delivery of Section 2.1such materials to the Board of Directors; provided, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “that failure to deliver any such notice or materials to any Board Observer Right”).shall not impair the validity of any action taken by the Board of Directors;
(b) The the Board Observer Observers shall be entitled (i) to receive notice of each meeting (including telephonic meetings) attend all meetings of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either Directors in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetingstelephone, and the Company covenants to take reasonable measures to facilitate shall ensure that appropriate arrangements are made such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not Observers will be restricted in any confidential communications or discussions with or the confidential provision of information able to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares hear everyone during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 meeting of the Exchange Act) and Board of Directors at which the Board Observers participate by telephone; provided, that (Ci) the SoftBank Board Observer may be excluded from all or a access to any portion of any meeting to the same extent as the SoftBank Director (or, in the event the SoftBank Director is not appointed, as if the SoftBank Director were so appointed) would be so excluded (or recused) pursuant to the terms hereof and (ii) the Honda Board Observer may be excluded from receiving all or a access to any portion of any materials provided to the member of the Board (x) meeting to the extent that the presence of matters with respect to which Honda Competitively Sensitive Information is shared, presented or discussed;
(c) the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofObservers shall be observers only, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the actual members of the Board of Directors and shall not have any of the rights, duties or obligations of a Director (including that the Board Observers shall not have the right to vote on any matter that may come before the Board of Directors). The Board Observers shall not count towards any quorum;
(d) subject to Section 6.04(f), SoftBank has the right to remove and replace or substitute the SoftBank Board Observer from time to time by providing written notice to the Company;
(e) subject to Section 6.04(g), Honda has the right to remove and replace or substitute the Honda Board Observer from time to time by providing written notice to the Company;
(f) upon such time as SoftBank owns less than the SoftBank Floor Amount, the SoftBank Board Observer shall be automatically removed and shall cease to have any of the rights contemplated by this Section 6.04, and the Company takes reasonable measures right of SoftBank to facilitate designate, appoint, remove and replace the SoftBank Board Observer shall be null and void;
(g) upon such time as Honda owns less than the Honda Floor Amount, the Honda Board Observer shall be automatically removed and shall cease to have any of the rights contemplated by this Section 6.04, and the right of Honda to designate, appoint, remove and replace the Honda Board Observer shall be null and void; and
(h) prior to appointment, the Board Observer’s attendance at any such meeting in accordance Observers will each enter into a confidentiality agreement with this Section 3.2(b)the Company, on terms mutually acceptable to the Board of Directors and the Board Observers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (General Motors Co)
Board Observer. (a) Priceline The Required Lenders shall have the rightright to select a single non-voting observer (each person so selected to serve as an observer from time to time, exercisable by delivering notice to the Company, to designate one observer an “Observer”) to attend any all meetings (including regular and special meetings, “Meetings”) of the Board of Directors of Holdings and each committee thereof the Borrower (collectively, the “Board Observer”) for so long as (i) Priceline Governing Bodies” and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Companyeach, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the a “Board Observer RightGoverning Body”). The Observer shall have the right to attend such Meetings in person or telephonically or through other means of communication, in each case, to the extent not prohibited under the applicable laws or regulations of the state of organization of the Borrower or Holdings, as applicable.
(b) The Board Observer shall be entitled (i) to receive provided with notice of each meeting (including telephonic meetings) of the Board of, and any committee thereof agendas for, all Meetings in the same form manner and manner at the same time as notice is given sent to the members of the Board and the same materials as and when provided applicable Governing Body. If any Governing Body proposes to such members (both before or after take any action by written consent in lieu of a meeting, including copies the Observer shall receive (A) a draft of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by such written consent without giving at the same time and in the same manner as if the Observer were a member of such prior notice to the Board Observer Governing Body and (B) a copy of such written consent when sent to members of such Governing Body for execution.
(c) Concurrently with his or her designation, the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided enter into a reasonable and customary confidentiality agreement.
(provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (Bd) such Board Observer and Priceline shall be subject Anything to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of contrary herein notwithstanding, the Exchange Act) and (C) the Board Observer may be excluded from all or a portion any portions of any meeting Meetings or from receiving all or a portion any portions of any materials provided information to the member of the Board extent (x) necessary to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client retain legal privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter involves a matter reasonably determined by the members of the Board of Directors to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition present a conflict of interest between the Company Holdings, the Borrower or its Subsidiariestheir respective subsidiaries and stockholders, on the one hand, and Priceline any Lender or its Subsidiariesan affiliate of either, on the other hand; provided, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b)that, in the event that any regular or special meeting the Observer is so excluded, Holdings and/or the Borrower, as applicable, shall provide to the Observer a summary of the Board is convened, materials or meeting which the Company shall be deemed to be Observer was not provided access in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice a manner in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board Holdings and the Company takes Borrower’s legal counsel’s reasonable measures to facilitate the Board Observer’s attendance at and good faith determination does not waive any applicable privilege as soon as reasonably practicable following such meeting in accordance with this Section 3.2(b)meeting.
Appears in 1 contract
Board Observer. (a) Priceline Subject to Section 2.4, the Investors shall have the right, exercisable by delivering notice to the Company, be entitled collectively to designate one observer individual (who may be an employee of the Investors or their Affiliates) who is acceptable to the Parent, acting reasonably, (the "Board Observer") to attend any meetings of the Board and each of Directors, committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least meetings of the Board of Directors and any executive sessions, as a non-voting observer. The Board Observer Threshold Shareholding shall not have the right to vote at any meeting of the Board of Directors or be counted towards determining whether there is quorum for such meeting, but shall be entitled to participate in the Companydiscussions of the Board of Directors, (ii) Priceline committee meetings of the Board of Directors and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”)any executive sessions.
(b) The Board Observer shall be entitled Subject to Section 2.3(e), the Parent shall:
(i) to receive notice provide the Board Observer with notice, if any, of each meeting (including telephonic meetings) of the Board and any committee thereof of Directors (telephonic or otherwise), in the same form manner and manner at the same time as is given provided to the members Board of the Board and the same materials as and when provided to such members Directors;
(both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice ii) provide to the Board Observer copies of all materials provided to the Board of Directors, in the same manner and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the same time as provided to the Board Observer’s discretionof Directors;
(iii) provide to the Board Observer drafts of all resolutions proposed for signature by the Board of Directors (in lieu of a meeting) before such resolutions are so signed, in the same manner and at the same time as provided to the Board of Directors; and
(iv) permit the Board Observer to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board of Directors (telephonic or otherwise), including, without limitation, any committee meeting of the Board of Directors or executive sessions, as an observer, except with respect to materials or resolutions, or attendance at such meetingsportions of any such meeting, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, in which (A) the Board Observer shall agree subject matter relates to hold a transaction, proceeding or matter in confidence all information provided which the Investors or their Affiliates or investee entities (provided that other than the Parent) are or may be interested parties, and where the participation in such portion of any such meeting by the Board Observer shall not be restricted or access to Confidential Information relating to the Parent would, upon the advice of counsel, give rise to a conflict of interest between the Investors and the Parent, as determined by the Board of Directors in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives)sole discretion, (B) the Board of Directors determines, upon the advice of counsel, that such exclusion is reasonably necessary to preserve solicitor-client privilege or (C) the Board of Directors determines, upon the advice of counsel, that such exclusion is reasonably necessary for the Parent or its subsidiaries to comply with their respective confidentiality obligations.
(c) The Investors shall advise the Parent of the identity of the Board Observer and Priceline shall be subject that it has designated, from time to time. The parties acknowledge that the Company’s initial Board Observer is: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline .
(d) From the date on which the Parent provides notice to the Investors or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may of a bona fide claim or possible claim for a breach or threatened breach by the Board Observer of the Observer Agreement, the Parent shall not be excluded from all required to comply with Section 2.3(b) unless and until such claim is abandoned or a portion resolved substantially in the Board Observer's favour.
(e) The Board Observer will be required to execute the Observer Agreement before being permitted to attend any meetings of any meeting or from receiving all or a portion the Board of Directors and/or being provided with any materials provided to the member Board of Directors.
(f) The Investors shall be entitled to designate one alternate Board Observer, who shall be acceptable to the Parent, acting reasonably, to attend meetings of the Board of Directors, committee meetings of the Board of Directors and any executive session, in the place of the Board Observer, provided that (xi) the Investors provide written notice of the identity of such alternate Board Observer to the extent that Board of Directors as soon as practicable prior to the presence meeting at which such alternate Board Observer will attend, and (ii) such alternate Board Observer shall have executed an Observer Agreement before being permitted to attend any meetings of the Board of Directors and/or being provided with any materials provided to the Board of Directors. For greater certainty, the Parent shall not be required to comply with the timing requirements of Section 2.3(b) .
(g) The Parent shall not be required to (i) pay any compensation to the Board Observer or any alternate Board Observer or (ii) provide any indemnification, or maintain coverage under any policies of directors' and officers' insurance, in favour of the Board Observer at such meeting or any portion thereof alternate Board Observer; provided, however, that the Parent shall reimburse any reasonable costs or the receipt expenses incurred by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the alternate Board Observer shall not constitute a member in connection with his or her attendance at meetings of the Board and shall not be entitled to vote onof Directors, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting committee meetings of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at Directors or any such meeting in accordance with this Section 3.2(b)executive sessions.
Appears in 1 contract
Board Observer. (a) Priceline Following the receipt of CFIUS Approval and subject to Section 6.05, SoftBank shall have the exclusive right, exercisable by delivering notice to for so long as SoftBank owns the CompanyFloor Amount, to designate one observer natural person to attend any all meetings of the Board and each committee thereof of Directors in a non-voting observer capacity (the “Board Observer”). The following terms and conditions will apply to the Board Observer:
(a) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Company shall deliver to the Board Observer Threshold Shareholding copies of all reports, notices, minutes, consents, actions taken or proposed to be taken without a meeting and other materials in each case (and to the Companyextent) that the Company provides the same to the SoftBank Director, (ii) Priceline and its Subsidiaries comply in all material respects each such delivery to be made concurrently with the provisions delivery of Section 2.1such materials to the SoftBank Director; provided, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and ▇▇▇▇▇▇▇.▇▇▇ B.V. complies in all material respects with the provisions thereof (the “that failure to deliver any such notice or materials to any Board Observer Right”).shall not impair the validity of any action taken by the Board of Directors;
(b) The the Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) attend all meetings of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either Directors in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetingstelephone, and the Company covenants shall ensure that appropriate arrangements are made such that the Board Observer will be able to take reasonable measures hear everyone during any meeting of the Board of Directors at which the Board Observer participates by telephone; provided, that a Board Observer may be excluded from access to facilitate such attendance and discussion; provided that, notwithstanding any other provision portion of this Section 3.2, any meeting to the same extent as the SoftBank Director would be so excluded (Aor recused) pursuant to the terms hereof;
(c) the Board Observer shall agree to hold in confidence all information provided be an observer only, shall not be an actual member of the Board of Directors and shall not have any of the rights, duties or obligations of a Director (provided including that the Board Observer shall not be restricted in have the right to vote on any confidential communications or discussions with or matter that may come before the confidential provision Board of information Directors). The Board Observer shall not count towards any quorum;
(d) subject to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representativesSection 6.04(e), (B) such SoftBank has the right to remove and replace or substitute the Board Observer and Priceline shall be subject from time to time by providing written notice to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with ;
(e) upon such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of time as SoftBank owns less than the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereofFloor Amount, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member be automatically removed and shall cease to have any of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of rights contemplated by this Section 3.2(b)6.04, in and the event that any regular or special meeting right of the Board is convenedSoftBank to designate, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b)appoint, provided that remove and replace the Board Observer is given the notice in the same form shall be null and manner as, and copies of the same materials as and when provided tovoid; and
(f) prior to appointment, the members of Board Observer will enter into a confidentiality agreement with the Company, on terms mutually acceptable to the Board of Directors and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).
Appears in 1 contract
Sources: Limited Liability Company Agreement (General Motors Co)