Common use of Board Observer Clause in Contracts

Board Observer. During the Term, Investor shall have the right to designate one (1) individual to be present in a non-voting, observational capacity (for clarity, with no right to participate) at all meetings of the Opthea Board of Directors or any committee thereof, including any telephonic meetings but excluding executive sessions of any such meetings (such individual, the “Investor Board Observer”). Any materials that are sent by Opthea to the members of the Opthea Board of Directors in their capacity as such shall be sent to the Investor Board Observer simultaneously by means reasonably designed to ensure timely receipt by the Investor Board Observer (provided that Opthea need not provide to the Investor Board Observer any information that, if disclosed to the Investor Board Observer in his or her capacity as 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 Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related to the Product or the activities undertaken by Opthea, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing the Product) or (iii) the relationship between Opthea and Investor, or any information related to internal business matters of Opthea that does not relate to the activities to be undertaken by Opthea pursuant to this Agreement and would not reasonably be expected to have a Material Adverse Event), and Opthea will give the Investor Board Observer notice of such meetings, by the same means as such notices are delivered to the members of the Opthea Board of Directors and at the same time as notice is provided or delivered to the Opthea Board of Directors. The Investor Board Observer will execute a confidentiality agreement in form and substance reasonably acceptable to Investor (and, for the avoidance of doubt, Investor will remain responsible to Opthea for any noncompliance by the Investor Board Observer with such confidentiality obligations).

Board Observer. During 15.1 Commencing on the Termdate of this agreement, Investor the board of directors of Opsys have the right to nominate an observer to attend all board meetings of CDT provided that such observer is approved as suitable by CDT, such approval not to be unreasonably withheld or delayed. After the exercise of the Opsys UK Option such right shall continue until Opsys ceases to hold an aggregate Shareholding in CDT of at least 4% of the whole of the issued share capital of CDT. CDT shall provide the observer with reasonable prior written notice of all meetings (both formal and informal) of the board of directors of CDT and such observer shall be entitled to all information, papers and accounts presented to such directors in their capacity as directors. The expenses incurred by the observer in attending the meetings shall be for the account of Opsys until the date on which the Opsys UK Option or the Opsys Option is exercised and completed after which time such expenses are payable by and for the account of CDT. 15.2 If the Opsys Option is exercised, the shareholders of Opsys on the date of such exercise shall have the right to designate one (1) individual appoint an observer subject to the terms referred to in sub-clause 15.1 above where such right shall continue for such time as such shareholders hold an aggregate shareholding in CDT of at least 4% of the whole of the issued share capital of CDT. 15.3 Where the Chairman of CDT, acting reasonably, considers that the observer has a direct commercial conflict relating to any matter to be present in a non-voting, observational capacity (for clarity, with no right to participate) discussed at all meetings of the Opthea Board board of Directors directors of CDT, or any committee thereofthe information to which he is entitled under sub-clause 15.1, including any telephonic meetings but excluding executive sessions then on request by CDT (to be made one week in advance of any such meeting or the date on which the observer would otherwise have been entitled to such information), the observer (at its discretion) shall either (a) absent itself from such meetings and part of such meetings and or forgo his entitlement to information as the case may be, or (such individual, the “Investor Board Observer”). Any materials that are sent by Opthea b) appoint an alternative observer to the members of the Opthea Board of Directors in their capacity as such shall be sent to the Investor Board Observer simultaneously by means reasonably designed to ensure timely receipt by the Investor Board Observer (provided that Opthea need not provide to the Investor Board Observer any information that, if disclosed to the Investor Board Observer in his or her capacity as 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 Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related to the Product or the activities undertaken by Opthea, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing the Product) or (iii) the relationship between Opthea and Investormeeting, or any to receive such information related to internal business matters of Opthea that does not relate to as the activities case may be, such observer to be undertaken approved as suitable by Opthea pursuant CDT, such approval not to this Agreement and would not reasonably be expected to have a Material Adverse Event), and Opthea will give the Investor Board Observer notice of such meetings, by the same means as such notices are delivered to the members of the Opthea Board of Directors and at the same time as notice is provided unreasonably withheld or delivered to the Opthea Board of Directors. The Investor Board Observer will execute a confidentiality agreement in form and substance reasonably acceptable to Investor (and, for the avoidance of doubt, Investor will remain responsible to Opthea for any noncompliance by the Investor Board Observer with such confidentiality obligations)delayed.

Board Observer. During the TermObserver Period, Investor the Investors shall have the right be permitted to designate one appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as a Board observer (1) individual to be present in a non-voting, observational capacity (for clarity, with no right to participate) at all meetings of the Opthea Board of Directors ▇▇. ▇▇▇▇▇▇▇ or any committee thereof, including any telephonic meetings but excluding executive sessions of any such meetings (such individualreplacement observer appointed pursuant to paragraph 1(c)(ii) below, the “Investor Board Observer”). Any materials that are sent by Opthea , who during the Observer Period shall, subject to the members of the Opthea Board of Directors in their capacity as such shall be sent to the Investor Board Observer simultaneously by means reasonably designed to ensure timely receipt by the Investor Board Observer (provided that Opthea need not provide to the Investor Board Observer any information that, if disclosed to the Investor Board Observer in his or her capacity as 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 Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related to the Product or the activities undertaken by Opthea, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing the Product) or (iii) the relationship between Opthea and Investor, or any information related to internal business matters of Opthea that does not relate to the activities to be undertaken by Opthea pursuant to this Agreement and would not reasonably be expected to have a Material Adverse Event), and Opthea will give the Investor Board Observer notice of such meetings, by the same means as such notices are delivered to the members of the Opthea Board of Directors and at the same time as notice is provided or delivered to the Opthea Board of Directors. The Investor Board Observer will execute entry into a confidentiality agreement in form and substance reasonably acceptable to the Company, (i) receive copies of all documents distributed to the Board (electronically or otherwise) and (ii) be permitted to attend (but not vote at) all meetings of the Board (whether in person, telephonic or otherwise). The foregoing notwithstanding, the Company shall be permitted to exclude the Observer from access to any material, meeting or portion of any material or meeting if (i) the General Counsel of the Company determines in good faith that such exclusion is reasonably necessary in order to preserve any legal privilege or (ii) it is reasonably necessary to enable the Board to in good faith discuss matters relating to this Agreement, the Investors or related matters. The Investors agree that they shall cause the Observer to strictly preserve the confidentiality of any and all information provided to the Observer by the Company and the Board, including any information observed by the Observer at any meeting of the Board or otherwise. The “Observer Period” shall be the period commencing at the conclusion of the 2018 Annual Meeting (the “Initial Observer Date”) and ending on the latest of (i) the day after the second regularly scheduled quarterly meeting of the Board following the date of the 2018 Annual Meeting, (ii) the date that is six (6) months following the Initial Observer Date and (iii) the date on which any two of the Chief Executive Officer of the Company, ▇▇. ▇▇▇▇▇▇ (or any replacement director appointed pursuant to paragraph 1(c)(i) below) and ▇▇. ▇▇▇▇▇▇▇▇▇ vote to terminate the Observer Period. Notwithstanding anything set forth in this Agreement, (A) the Observer Period shall terminate no later than the date on which any Investor or Associate, Affiliate or Family Member of any Investor takes any action that would be prohibited by the Standstill if taken during the Standstill Period (andincluding, without limitation, nominating or disclosing an intention to nominate one or more persons for election as a director at the avoidance 2019 annual meeting of doubtstockholders (the “2019 Annual Meeting”), Investor will remain responsible and (B) the Observer Period shall terminate as of the 2019 Annual Meeting unless any two of ▇▇. ▇▇▇▇▇▇ (or any replacement director appointed pursuant to Opthea paragraph 1(c)(i) below), ▇▇. ▇▇▇▇▇▇▇▇▇ and the Chief Executive Officer of the Company vote to extend the Observer Period. The Company shall reimburse the Board Observer for any noncompliance by reasonable and documented out-of-pocket expenses incurred in connection with its function as a Board Observer, including travel and lodging expenses incurred to attend meetings of the Investor Board Observer with such confidentiality obligations)Board.

Board Observer. During 5.1 The Issuer agrees and undertakes that, as of the TermClosing Date until such time as the Subscriber is the beneficial holder of less than 5% of the issued and outstanding common shares in the capital of the Issuer (the “Observer Threshold”), Investor the Subscriber shall have be entitled to appoint one observer (the right “Observer”) to designate one the board of directors of the Issuer (1) individual the “Board”), which observer shall be entitled to be present in a non-voting, observational capacity (for clarity, with no right to participate) at receive notice of and attend all meetings of the Opthea Board of Directors or any committee thereofBoard, including any telephonic meetings but excluding executive sessions of any such meetings (such individualnot to vote thereat, and to receive all information and materials provided by the “Investor Board Observer”). Any materials that are sent by Opthea Issuer to the members of the Opthea Board of Directors in their capacity from time to time, as well as such shall be sent to further information as the Investor Board Observer simultaneously by means may reasonably designed request in order to ensure timely receipt compliance by the Investor Board Issuer with its various obligations towards the Subscriber. The Observer (provided that Opthea need not provide to the Investor Board Observer any shall hold in confidence and trust all information that, if disclosed to the Investor Board Observer received and shall act in his or her capacity as 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 a fiduciary manner with respect to all information so provided in the same manner as if the Observer were a director of the Issuer, except that the Observer shall be entitled to disclose such information to 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 as it specifically relates to Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related apply to the Product or Observer. Moreover, the activities undertaken by Opthea, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing Observer shall be the Product) or (iii) the relationship between Opthea and Investor, or any information related to internal business matters beneficiary of Opthea that does not relate to the activities an indemnification agreement to be undertaken by Opthea pursuant to this Agreement entered in its favour into between the Observer and would not reasonably be expected to have a Material Adverse Event), and Opthea will give the Issuer. 5.2 Upon the Investor Board ceasing to satisfy the Observer notice Threshold, the Subscriber shall notify the Issuer of such meetingsfact and, by at the same means as such notices are delivered to the members option of the Opthea Board Issuer, the Subscriber will cause the Observer to be removed, it being understood that the right of Directors the 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 at outstanding common shares in the same time as notice is provided or delivered to capital of the Opthea Board of Directors. The Investor Board Observer will execute a confidentiality agreement in form and substance reasonably acceptable to Investor (and, for the avoidance of doubt, Investor will remain responsible to Opthea for any noncompliance by the Investor Board Observer with such confidentiality obligations)Issuer.

Board Observer. During Prior to the TermBoard Trigger Event, Investor Holders of a majority in aggregate principal amount of the outstanding Notes shall have the right to designate one representative (1the “Observer”) individual to be present in a non-voting, observational capacity (for clarity, with no right to participate) at attend all meetings of the Opthea Board of Directors of Holdings as a non-voting observer by notifying Holdings in writing or any committee thereof, including any telephonic meetings but excluding executive sessions of any such meetings (such individual, by directing the “Investor Board Observer”)Trustee to notify Holdings in writing. Any materials that are sent by Opthea to the members of the Opthea Board of Directors in their capacity as such The Observer shall be sent to the Investor Board Observer simultaneously by means reasonably designed to ensure timely receipt by the Investor Board Observer (provided that Opthea need not provide to the Investor Board Observer any information that, if disclosed to the Investor Board Observer in his or her capacity as such, would adversely affect the maintenance by Opthea of any applicable attorney-client privilege, any information that relates entitled to (i) notice of all meetings of the negotiation Board of any amendment Directors of Holdings in the manner that notice is provided to or restatement members of this Agreementthe Board of Directors of Holdings, (ii) receive all materials provided to members of the strategy with respect to this Agreement as it specifically relates to Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related to the Product or the activities undertaken by OptheaBoard of Directors of Holdings, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing the Product) or (iii) the relationship between Opthea and Investorattend (whether in person, by telephone, or any information related to internal business matters otherwise) all meetings of Opthea that does not relate to the activities to be undertaken by Opthea pursuant to this Agreement and would not reasonably be expected to have Board of Directors of Holdings as a Material Adverse Event)non-voting observer, and Opthea will give the Investor Board Observer notice (iv) receive payment of such meetings, by the same means as such notices are delivered reasonable and customary fees and reimbursement of reasonable out-of-pocket expenses paid to the other members of the Opthea Board of Directors and at the same time as notice is provided or delivered to the Opthea Board of Directors. The Investor Board Observer will execute a confidentiality agreement in form and substance reasonably acceptable to Investor (andHoldings; provided, that for the avoidance of doubt, Investor the Observer shall not be entitled to receive any compensation or indemnity from Holdings or the Company for acting in such capacity. The Holders of a majority in aggregate principal amount of the outstanding Notes may remove the Observer and replace the Observer in the event of the Observer’s removal, death or resignation by notifying the Company in writing or by directing the Trustee to notify the Company in writing. Notwithstanding anything to the contrary contained herein, Holdings reserves the right to exclude any such Observer from the relevant portion of any meeting or any delivery of any particular materials if Holdings reasonably believes that: (i) upon the advice of counsel, attendance at such portion of such meeting or receipt of such materials would likely cause Holdings or any of its subsidiaries to lose the benefit of protection in respect of what would otherwise be privileged legal communications; (ii) attendance at such portion of such meeting will remain responsible include discussions of matters with respect to Opthea for which Holdings or any noncompliance of its subsidiaries, on the one hand, and the Holders or the Observer, on the other, are directly adverse; (iii) upon the advice of counsel, attendance at such portion of such meeting or receipt of such materials is prohibited by a confidentiality agreement with a third party that is binding on Holdings or any of its subsidiaries; or (iv) attendance at such portion of such meeting or receipt of such materials would require Holdings to publicly disclose any non-public information in accordance with applicable law; provided, that with respect to the Investor Board provisions in clause (iii) and (iv), Holdings shall not have the right to exclude the Observer with if the Observer enters into a confidentiality agreement reasonably acceptable to Holdings and the Observer pursuant to which the Observer agrees to keep the matters discussed at such portion of such meeting or such particular materials, as applicable, confidential (to the extent required by such confidentiality obligationsagreement, in the case of clause (iii), or to the extent required so that the Company need not make such public disclosure in the case of clause (iv)). Holdings will provide reasonable advance notice if it intends to exclude the Observer from attending any portion of any meeting or from receiving any particular materials, describing the basis for such exclusion, and shall cooperate with the 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.

Board Observer. During (a) L▇▇▇▇▇▇, Inc. shall hold regular meetings of its board of directors (or equivalent governing body) at least once per fiscal quarter. So long as Alcentra holds at least 75% of the Termoriginal principal amount of the Loan advanced on the Closing Date, Investor Alcentra shall have the right be entitled to designate one (1) individual observer to the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and each of its Subsidiaries, and any committee thereof, which observer shall receive (at the same time and in the same manner provided to the directors) notice of and copies of all materials provided to directors in connection with, and shall be present in a non-votingentitled to attend and participate in, observational capacity (for clarityat the Loan Parties’ expense, with no right to participate) at all meetings of the Opthea Board board of Directors directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and each of its Subsidiaries, and any committee thereof, including any telephonic meetings but excluding executive sessions of any such meetings . Such observer shall also receive (such individual, the “Investor Board Observer”). Any materials that are sent by Opthea to the members of the Opthea Board of Directors in their capacity as such shall be sent to the Investor Board Observer simultaneously by means reasonably designed to ensure timely receipt by the Investor Board Observer (provided that Opthea need not provide to the Investor Board Observer any information that, if disclosed to the Investor Board Observer in his or her capacity as 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 Investor (provided that nothing in this clause (ii) shall permit Opthea to withhold information related to the Product or the activities undertaken by Opthea, whether generally or pursuant to this Agreement, in connection with Developing and Commercializing the Product) or (iii) the relationship between Opthea and Investor, or any information related to internal business matters of Opthea that does not relate to the activities to be undertaken by Opthea pursuant to this Agreement and would not reasonably be expected to have a Material Adverse Event), and Opthea will give the Investor Board Observer notice of such meetings, by the same means as such notices are delivered to the members of the Opthea Board of Directors and at the same time as notice is and in the same manner provided or delivered to the Opthea Board directors) notice of Directorsand copies of all materials provided to the directors in connection with any actions to be taken by written consent of the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and each of its Subsidiaries, and any committee thereof; provided that such observer shall execute a customary confidentiality agreement on terms reasonably satisfactory to the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. relating to such observer’s attendance at such board meetings; provided further that notwithstanding anything herein to the contrary, the board of directors (or equivalent governing body) of L▇▇▇▇▇▇, Inc. and each of its Subsidiaries, and any committee thereof may exclude such observer from any portion of such meeting, as determined in good faith, in order to preserve attorney-client privilege or to avoid a conflict of interest where the discussions in such meeting directly relate to matters pertaining to the Loans as to which the interests of the Loan Parties and Alcentra are reasonably expected to be adverse. The Investor Board Observer will execute a confidentiality agreement Loan Parties shall reimburse Alcentra for all reasonable expenses (including all travel, meal and lodging expenses) incurred by its observer in form and substance reasonably acceptable to Investor (and, for the avoidance of doubt, Investor will remain responsible to Opthea for connection with attending any noncompliance by the Investor Board Observer with such confidentiality obligations)meetings described above.