Common use of Access, Information and Confidentiality Clause in Contracts

Access, Information and Confidentiality. (a) From the date hereof, until the date Purchaser Beneficially Owns less than the greater of (A) 5% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchaser, all shares of Common Stock into which the Convertible Preferred Stock owned by Purchaser are convertible and as adjusted from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalization), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.

Access, Information and Confidentiality. (a) From the date hereofof this Agreement, until the date Purchaser Beneficially Owns less than when the greater of (A) 5% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchaserthe Investor and its Affiliates and, for purposes of this Section 3.3, persons who share a common discretionary investment advisor with the Investor, in the aggregate represent less than 2.0% of all of the outstanding Common Stock (provided that, in making such calculation, (i) all shares of Common Stock into or for which shares of any securities owned by the Investor are directly or indirectly convertible or exercisable, which, for the avoidance of doubt, shall include those shares of Common Stock issuable upon the conversion of shares of Series B Preferred Stock, shall be included in the numerator, (ii) the shares described in clause (i) and all such shares owned by or attributed to Other Investors shall be included in the denominator, and (iii) all securities issued by the Company after the Closing Date other than in connection with an issuance in which the Convertible Preferred Stock owned by Purchaser are convertible and as adjusted Investor (or a permitted assignee under Section 6.8) was offered the right to purchase its pro rata portion of such securities in accordance with Section 5.12 shall be excluded from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalizationdenominator), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all ensure that upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably requestnotice, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and its subsidiaries will afford to the Investor and its representatives (including employees of the Investor, and counsel, accountants, financial and investment banking advisors and other professionals retained by the Investor) once per calendar quarter (i) such access during normal business hours to its books, records, properties and personnel and to such other information as the Investor may reasonably request and (ii) reasonable opportunities to routinely consult with the management of the Company Subsidiaries)and its subsidiaries on matters relating to the operation of the Company. The Company agrees to consider, in good faith, the recommendations of the Investor or (z) its designated representative in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company. Notwithstanding anything in this Agreement to the contrary, at no time will the Company provide to the Investor any material non-public information unless the Investor shall have specifically requested such disclosure would reasonably be expected to cause a violation of any agreement to which in writing from the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsCompany.

Access, Information and Confidentiality. (a) From So long as the date hereofLead Investor, until together with its Affiliates, in the date Purchaser Beneficially Owns less than the greater of (A) 5aggregate owns 4.9% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% all of the number of outstanding shares of Common Stock purchased by Purchaser pursuant to this Agreement(provided that, by (y) the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchasermaking such calculation, all shares of Common Stock into or for which shares of any securities owned by the Lead Investor are directly or indirectly convertible or exercisable, which, for the avoidance of doubt, shall include those shares of Common Stock issuable upon the conversion of shares of Series A Preferred Stock, Series B Preferred Stock, the Non-Voting Common Stock and/or the exercise of the Warrants, shall be included in both the numerator and denominator, and all Common Stock issued by the Company after the Closing Date shall be included in the denominator except for any shares of Common Stock issued in an offering in which the Convertible Preferred Lead Investor (or a permitted assignee under Section 4) was not offered the right to purchase its pro rata portion of such Common Stock owned by Purchaser are convertible and as adjusted from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in violation of Section 1(d)) (the Company’s capitalization“Qualifying Ownership Interest”), (1and subject to the confidentiality provision of Section 6(c) once per calendar quarter of the Agreement, the Company will (i) permit Purchaser the Lead Investor to visit and inspect, at Purchaserthe Lead Investor’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers personnel of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser the Lead Investor may reasonably request, and (2ii) once per calendar quarter make appropriate officers and directors of the Company, Company and Company Subsidiaries, Subsidiaries available periodically and at such times as reasonably requested by Purchaser the Lead Investor for consultation with Purchaser the Lead Investor or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a1(a) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser the Lead Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser such the Lead Investor or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of attorney-client privilege to the Company or any Company Subsidiary (provided that provided, that, the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (za) apply). In the event, and addition to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the Lead Investor’s rights afforded pursuant to Section 2 of this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, letter agreement and subject to the extent such plan assets regulation applies foregoing limitations, the Lead Investor shall have the right to receive all materials delivered to the investment Board of Directors and all committees thereof (other than matters pertaining to the Lead Investor or which would constitute confidential supervisory information within the meaning of 12 C.F.R. Part 261) as long as the Lead Investor is entitled to a Board Representative or Observer in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.accordance with Section 2 of this letter agreement.(b)

Access, Information and Confidentiality. (a) From the date hereof, of this Agreement until the date Purchaser Beneficially Owns when the Common Shares owned by the Investor and its Affiliates in the aggregate represent less than the greater two percent (2%) of (A) 5% or more all of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock Shares (provided that, in each case, counting as shares of Common Stock owned by Purchasermaking such calculation, all shares of Common Stock into Shares issued by the Company after the Closing Date other than in connection with an issuance in which the Convertible Preferred Stock owned by Purchaser are convertible Investor (or a permitted assignee under Section 6.8) was offered the right to purchase the Unsubscribed Shares in accordance with Section 5.14 and as adjusted 1.2(a) shall be excluded from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalizationdenominator), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all ensure that upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably requestnotice, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information and its subsidiaries will afford to the extent Investor and its representatives (xincluding employees of the Investor and counsel, accountants, financial and investment banking advisors and other professionals retained by the Investor) prohibited by applicable law or regulation(1) such access during normal business hours to its books, records, properties and personnel and to such other information as the Investor may reasonably request and (y2) that reasonable opportunities to routinely consult with the management of the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information and its subsidiaries, which shall not be used by Purchaser more frequently than once per calendar quarter, on matters relating to the operation of the Company. The Company agrees to consider, in good faith, the recommendations of the Investor or its Affiliates to compete designated representative in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company. Notwithstanding anything in this Agreement to the contrary, at no time will the Company provide to the Investor any material non-public information (other than as disclosed to the Board Representative or the Board Observer, as the case may be and Company Subsidiaries), or (zas applicable) that unless the Investor shall have specifically requested such disclosure would reasonably be expected to cause a violation of any agreement to which in writing from the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsCompany.

Access, Information and Confidentiality. (a) From So long as the date hereofLead Investor, until together with its Affiliates, in the date Purchaser Beneficially Owns less than the greater of (A) 5aggregate owns 4.9% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% all of the number of outstanding shares of Common Stock purchased by Purchaser pursuant to this Agreement(provided that, by (y) the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchasermaking such calculation, all shares of Common Stock into or for which shares of any securities owned by the Lead Investor are directly or indirectly convertible or exercisable, which, for the avoidance of doubt, shall include those shares of Common Stock issuable upon the conversion of shares of Series A Preferred Stock, Series B Preferred Stock, the Non-Voting Common Stock and/or the exercise of the Warrants, shall be included in both the numerator and denominator, and all Common Stock issued by the Company after the Closing Date shall be included in the denominator except for any shares of Common Stock issued in an offering in which the Convertible Preferred Lead Investor (or a permitted assignee under Section 4) was not offered the right to purchase its pro rata portion of such Common Stock owned by Purchaser are convertible and as adjusted from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in violation of Section 1(d)) (the Company’s capitalization“Qualifying Ownership Interest”), (1and subject to the confidentiality provision of Section 6(c) once per calendar quarter of the Agreement, the Company will (i) permit Purchaser the Lead Investor to visit and inspect, at Purchaserthe Lead Investor’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers personnel of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser the Lead Investor may reasonably request, and (2ii) once per calendar quarter make appropriate officers and directors of the Company, Company and Company Subsidiaries, Subsidiaries available periodically and at such times as reasonably requested by Purchaser the Lead Investor for consultation with Purchaser the Lead Investor or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a1(a) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser the Lead Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser such the Lead Investor or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of attorney-client privilege to the Company or any Company Subsidiary (provided that provided, that, the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (za) apply). In the event, and addition to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the Lead Investor’s rights afforded pursuant to Section 2 of this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, letter agreement and subject to the extent such plan assets regulation applies foregoing limitations, the Lead Investor shall have the right to receive all materials delivered to the investment Board of Directors and all committees thereof (other than matters pertaining to the Lead Investor or which would constitute confidential supervisory information within the meaning of 12 C.F.R. Part 261) as long as the Lead Investor is entitled to a Board Representative or Observer in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsaccordance with Section 2 of this letter agreement.

Access, Information and Confidentiality. (a) From the date hereof, of this Agreement until the date Purchaser Beneficially Owns when the Common Shares owned by the Investor and its Affiliates in the aggregate represent less than the greater two percent (2%) of (A) 5% or more all of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock Shares (provided that, in each case, counting as shares of Common Stock owned by Purchasermaking such calculation, all shares of Common Stock into or for which shares of any securities owned by the Investor are directly or indirectly convertible, which, for the avoidance of doubt, shall include those Common Shares issuable upon conversion of the Series B Preferred Shares to be issued hereunder, shall be included in both the numerator and denominator, and all Securities issued by the Company after the Closing Date other than in connection with an issuance in which the Convertible Preferred Stock owned by Purchaser are convertible Investor (or a permitted assignee under Section 6.8) was offered the right to purchase the Unsubscribed Shares in accordance with Section 5.14 and as adjusted 1.2(a) shall be excluded from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalizationdenominator), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all ensure that upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably requestnotice, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information and its subsidiaries will afford to the extent Investor and its representatives (xincluding employees of the Investor and counsel, accountants, financial and investment banking advisors and other professionals retained by the Investor) prohibited by applicable law or regulation(1) such access during normal business hours to its books, records, properties and personnel and to such other information as the Investor may reasonably request and (y2) that reasonable opportunities to routinely consult with the management of the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information and its subsidiaries, which shall not be used by Purchaser more frequently than once per calendar quarter, on matters relating to the operation of the Company. The Company agrees to consider, in good faith, the recommendations of the Investor or its Affiliates to compete designated representative in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company. Notwithstanding anything in this Agreement to the contrary, at no time will the Company provide to the Investor any material non-public information (other than as disclosed to the Board Representative or the Board Observer, as the case may be and Company Subsidiaries), or (zas applicable) that unless the Investor shall have specifically requested such disclosure would reasonably be expected to cause a violation of any agreement to which in writing from the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsCompany.

Access, Information and Confidentiality. (a) From the date hereof, until the date Purchaser Beneficially Owns less than when the greater of (A) 5% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock Securities purchased by Purchaser pursuant to this Agreement, Agreement and held by (y) Purchaser represent less than 5% of the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchaser, Purchaser all shares of Common Stock into which the shares of Convertible Preferred Stock or the Warrant owned by Purchaser are convertible or exercisable and as adjusted from time assuming that to time for the extent Purchaser shall purchase any reorganizationadditional shares of Common Stock, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or any later sales of Common Stock by Purchaser shall be deemed to be shares other like changes in than Securities to the Company’s capitalizationextent of such additional purchases) (the “Qualifying Ownership Interest”), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.

Access, Information and Confidentiality. (a) From the date hereofof this Agreement, until the date Purchaser Beneficially Owns less than when the greater of (A) 5% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchaserthe Investor and its Affiliates in the aggregate represent less than 2% of all of the outstanding Common Shares (provided that, in making such calculation, all shares of Common Stock into or for which shares of any securities owned by the Investor are directly or indirectly convertible or exercisable, which, for the avoidance of doubt, shall include those shares of Common Stock issuable upon the conversion of shares of Non-Voting Common Stock which itself is issuable upon conversion of shares of Series B Preferred Stock to be issued hereunder, upon exercise of the Warrants, pursuant to the Other Securities Purchase Agreements or upon exercise of the Other Warrants, shall be included in both the numerator and denominator, and all Securities issued by the Company after the Closing Date other than in connection with an issuance in which the Convertible Preferred Stock owned by Purchaser are convertible and as adjusted Investor (or a permitted assignee under Section 6.8) was offered the right to purchase its pro rata portion of such Securities in accordance with Section 5.14 shall be excluded from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalizationdenominator), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all ensure that upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably requestnotice, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the conduct of the business of the CompanyCompany the Company and its subsidiaries will afford to the Investor and its representatives (including employees of the Investor, and nothing herein shall require counsel, accountants, financial and investment banking advisors and other professionals retained by the Investor) (i) such access during normal business hours to its books, records, properties and personnel and to such other information as the Investor may reasonably request and (ii) reasonable opportunities to routinely consult with the management of the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulationand its subsidiaries, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information which shall not be used by Purchaser more frequently than once per calendar quarter, on matters relating to the operation of the Company. The Company agrees to consider, in good faith, the recommendations of the Investor or its Affiliates to compete designated representative in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company. Notwithstanding anything in this Agreement to the contrary, at no time will the Company provide to the Investor any material non-public information (other than as disclosed to the Board Representative or Observer, as the case may be and Company Subsidiaries), or (zas applicable) that unless the Investor shall have specifically requested such disclosure would reasonably be expected to cause a violation of any agreement to which in writing from the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsCompany.

Access, Information and Confidentiality. (a) From the date hereofof this Agreement, until the date Purchaser Beneficially Owns less than when the greater of (A) 5% or more of outstanding Common Stock, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40% of the number of shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock (in each case, counting as shares of Common Stock owned by Purchaserthe Investor and its Affiliates in the aggregate represent less than 5% of all of the outstanding Common Shares (provided that, in making such calculation, all shares of Common Stock into or for which shares of any securities owned by the Investor are directly or indirectly convertible or exercisable, which, for the avoidance of doubt, shall include those shares of Common Stock issuable upon the exercise of the Warrants, shall be included in both the numerator and denominator, and all Common Shares issued by the Company after the Closing Date other than in connection with an issuance in which the Convertible Preferred Stock owned by Purchaser are convertible and as adjusted Investor (or a permitted assignee under Section 6.8) was offered the right to purchase its pro rata portion of such Common Shares in accordance with Section 5.14 shall be excluded from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalizationdenominator), (1) once per calendar quarter the Company will permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all ensure that upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably requestnotice, and (2) once per calendar quarter make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries. Any investigation pursuant to this Section 3.2(a) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and its subsidiaries will afford to the Investor and its representatives (including employees of the Investor, and counsel, accountants, financial and investment banking advisors and other professionals retained by the Investor) [(i)] such access during normal business hours to its books, records, properties and personnel and to such other information as the Investor may reasonably request[, and (ii) reasonable opportunities to routinely consult with the management of the Company Subsidiaries)and its subsidiaries, which the parties expect would not be more frequently than once per calendar quarter on matters relating to the operation of the Company. The Company agrees to consider, in good faith, the recommendations of the Investor or its designated representative in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company].4 Notwithstanding anything in this Agreement to the contrary, at no time will the Company provide to the Investor any material non-public information (zother than as disclosed to the Board Representative or Observer, as the case may be and as applicable) that unless the Investor shall have specifically requested such disclosure would reasonably be expected to cause a violation of any agreement to which in writing from the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsCompany.

Access, Information and Confidentiality. (ai) From the date hereof, until the date Purchaser Beneficially Owns less than the greater of (A) 5% or more of outstanding Common StockFor so long as any Institutional Investor owns Convertible Preferred Stock convertible into, or (B) the percentage of outstanding Common Stock calculated by dividing (x) 40Conversion Securities representing, at least 4.9% of the number of outstanding shares of Common Stock purchased by Purchaser pursuant to this Agreement, by (y) the outstanding Common Stock (in each case, counting as shares case treating each Conversion Security that is not a share of Common Stock owned by Purchaser, all shares of as if it had converted into Common Stock into which the Convertible Preferred Stock owned by Purchaser are convertible and as adjusted from time to time for any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other like changes in the Company’s capitalizationStock), (1) once per calendar quarter the Company will (A) permit Purchaser such Institutional Investor to visit and inspect, at Purchasersuch Institutional Investor’s expense, the properties of the Company and the Company Subsidiariesits subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries its subsidiaries with the principal officers personnel of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser such Institutional Investor may reasonably request, and (2B) once per calendar quarter make appropriate officers and directors of the Company, Company and Company Subsidiaries, its subsidiaries available periodically and at such times as reasonably requested by Purchaser such Institutional Investor for consultation with Purchaser such Institutional Investor or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiariessubsidiaries of the Company. Any investigation pursuant to this Section 3.2(a6(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary of its subsidiaries to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser such Institutional Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser such Institutional Investor or its Affiliates to compete with the Company and Company Subsidiariesthe subsidiaries of the Company), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any subsidiary of the Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any subsidiary of the Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2(a) are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.