Common use of Board Observer Rights Clause in Contracts

Board Observer Rights. (a) Effective immediately following the Closing and for so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting observer to the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings of the Board of Directors and any committee thereof, and the Company shall provide the Purchaser Observer with copies of all notices, minutes, consents and other material in connection therewith at the same time as such materials are distributed to members of the Board of Directors or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a).

Board Observer Rights. (a) Effective immediately following the Closing and for For so long as the Purchaser and its Affiliates collectively Beneficially Own 50Investors hold, in the aggregate, at least 25% or more of the aggregate principal amount Common Stock (as adjusted for stock splits and combinations) acquired pursuant to conversion of the Note Beneficially Owned Convertible Notes and the Series C Preferred Stock (or shares of Common Stock issuable upon conversion of the Convertible Notes and the Series C Preferred Stock) held by them as of the Purchaser immediately following date of this Agreement, after taking into account the Redemption Closing (provided that, to as defined in the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of Purchase Agreement) if the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such conditionRedemption Closing occurs, the “Ownership Condition”), the Purchaser shall Majority Investors will have the right to designate a non-voting observer have up to the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and two individuals present at all meetings of the Board and, for so long as Mercato holds at least 10,000 of Directors Series B Preferred Stock (or shares of Common Stock issued upon conversion of the Series B Preferred Stock held by Mercato), Mercato will have the right to have one individual present at all meetings of the Board (each, a “Board Observer” and collectively, the “Board Observers”). The Board Observers will be (a) given notice by the Secretary of the Company of any meeting of the Board or any committee thereof, and the Company shall provide the Purchaser Observer with copies of all notices, minutes, consents and other material in connection therewith thereof at the same time as the directors, (b) entitled to be present at all meetings of the Board or any committee thereof, (c) provided copies of all minutes of Board meetings and Board committee meetings, and (d) provided copies of any reports, minutes or other documents distributed to the Board or any committee thereof at the time such materials are given to the Board; provided, however, that before any Confidential Information is distributed to members of any Board Observer pursuant to this Section 6.2, such Board Observer must execute a customary confidentiality agreement. If the Board or any committee thereof determines in good faith that exclusion of Directors a Board Observer from any meeting, or the applicable committee thereof; provided that withholding of any information or materials from a Board Observer, is reasonably necessary in order to (i) avoid a conflict of interest between the Purchaser shall cause Company or any Subsidiary, on one hand, and the Purchaser Observer to comply with Section 4.08 and Board Observer, on the other hand, (ii) the Company and the Board of Directors shall have the right to withhold any preserve trade secrets or other confidential or proprietary information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser GroupSubsidiary, or (Biii) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect preserve the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of or any Subsidiary, then the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to will have the right to designate exclude the Purchaser Board Observer pursuant only from those portions of any such meeting, or withhold only those portions of information or materials from a Board Observer, that is reasonably necessary to this Section 4.06(a)protect the Company’s or Subsidiary’s interest. The parties agree that the Board Observer of Mercato must be an individual who the Majority Investors conclude does not engage, directly or indirectly, in a business that competes with the Company.

Board Observer Rights. (a) Effective immediately following the Closing and for so So long as the Purchaser and its Affiliates collectively Beneficially Own 50% Alta Partners VIII, LP or more of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing an Affiliate thereof (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the “Alta”) holds at least 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the like) the Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right allow Alta to designate a non-voting one (1) observer to the Board of Directors (the “Purchaser Alta Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right ) to attend any and all regular meetings of the Board of Directors and any committee thereofcommittees thereof in a nonvoting capacity. So long as RiverVest Venture Fund II, L.P. or an Affiliate thereof (“RiverVest”) holds at least 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the like) the Company shall provide allow RiverVest to designate one (1) observer (the Purchaser “RiverVest Observer”) to attend all regular meetings of the Board of Directors and committees thereof in a nonvoting capacity. So long as Roche Finance Ltd or an Affiliate thereof (“Roche”) holds at least 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the like) the Company shall allow Roche to designate one (1) observer (the “Roche Observer”) to attend all regular meetings of the Board of Directors and committees thereof in a nonvoting capacity. In connection with the observer rights set forth in this Section 3.9, the Company shall give the Alta Observer, the RiverVest Observer with and the Roche Observer copies of all notices, minutes, consents and other material in connection therewith at the same time as such materials are distributed to members of the Board of Directors materials, financial or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) otherwise, which the Company and the Board of Directors shall have the right provides to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, all of which information shall be deemed by the Purchaser shall cause recipient thereof to be confidential information of the Purchaser Company unless such information is otherwise confirmed in writing by the Company to such recipient to not be confidential to the Company; provided, however that the Company reserves the right to exclude the Alta Observer, and/or the RiverVest Observer and/or the Roche Observer from access to resign promptly from any material or meeting or portion thereof if the Board of Directors determines (a) by a decision in good faith by at least a majority of the then-serving Directors, and upon advice from its legal counsel, that there is a substantial risk that such individual observer’s presence during such portion of the relevant meeting could result in each case upon the Purchaser ceasing Company’s loss of attorney-client privilege with respect to such matter or documents, (b) by a decision in good faith by at least a majority of the then-serving Directors, after reasonable consultation as to such matter by the Chief Executive Officer with such observer, reasonably believes that such specified matter relates directly and substantially to any matter in which both the Company and the observer entity have a material business or financial interest (as to such observer entity, other than solely by reason of the right observer entity’s interest as a stockholder of the Company) or such matter creates a conflict of interest for such observer entity, or (c) by a decision in good faith by at least a majority of the then-serving Directors, after consultation by the Chief Executive Officer with the Company’s legal counsel, that such specified matter involves confidential or sensitive information related to designate the Purchaser Observer pursuant business of the Company the disclosure of which by the Company to this Section 4.06(a)such observer entity would or could be adverse to the interests of the Company and its stockholders.

Board Observer Rights. (a) Effective immediately following Upon the Closing and for so long Technology Access Fee Closing, Intrexon will be entitled to maintain one person who is an employee, officer, or director of Intrexon who is appointed by Company as the Purchaser and its Affiliates collectively Beneficially Own 50% or more of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting an observer to the Board board of Directors directors of the Company (the “Purchaser Observer”). If Intrexon does not already have an Observer on the board of directors of Company at or prior to the Technology Access Fee Closing, which such person must the Company shall cause the President of Intrexon’s Human Therapeutics Division to be an employee appointed as Observer. Intrexon may, upon written notice to Company, change the identity of the Purchaser or its AffiliatesObserver, and the right of Intrexon to maintain one Observer on the board of directors of the Company shall continue until the Channel Agreement is terminated. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings of the Board Company’s board of Directors directors and committees thereof as an observer (with no power to vote on any committee thereof, matter before the board of directors) and the Company shall provide the Purchaser Observer with be entitled to receive copies of all notices, minutes, consents materials and other material in connection therewith at the same time as such materials are distributed receive all briefings provided to members of the Board Company’s board of Directors or the applicable committee thereofdirectors; provided that the Observer enters into a confidentiality agreement with the Company in a form reasonably satisfactory to the Company; and provided, further, that the Company reserves the right to (i) exclude the Purchaser shall cause the Purchaser Observer from access to comply with Section 4.08 and (ii) any board of directors’ materials or meetings or portion thereof if the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent believes that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, exclusion is advisable or reasonably necessary to protect preserve the attorney-client privilege between privilege, to protect highly confidential information or for other similar reasons, or if the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation believes in his or her capacity as a Purchaser Observer, provided good faith that the Company shall reimburse Observer has a conflict of interest, (ii) at the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting discretion of the Board of Directors applicable committee, exclude the Observer from access to any meeting materials or meetings (or any committee portion thereof) consistent with reimbursement policies of the Company applicable to non-executive directors nominating committee of the Board Company’s board of Directors. All obligations directors, compensation committee of the Company pursuant to this Section 4.06(a) shall terminateCompany’s board of directors, and, upon request by audit committee of the Board Company’s board of Directors, directors and any other committee of the Purchaser shall cause Company’s board of directors performing similar functions or which the Purchaser Observer to resign promptly from listing rules of the Board of Directors, in each case upon the Purchaser ceasing NYSE Amex require to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)such discretion.

Board Observer Rights. (a) Effective immediately following Prior to the Closing and completion of the Initial Offering, for so long as the Purchaser The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and its Affiliates collectively Beneficially Own 50continues to hold) at least 25% or more of the aggregate principal amount Subject Common Shares (or Series D Stock of the Note Beneficially Owned by Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Purchaser immediately following the Closing (provided that, Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the extent any portion of such Note has been converted into Company Common StockPurchase Agreement (as adjusted for stock splits, Purchaser subdivisions and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such conditioncombinations, the “Ownership Condition”reclassifications and similar corporate actions), the Purchaser Company shall have permit a designee of Xxxxxxx Sachs or its affiliates (the right "Observer") to designate a non-voting observer to the attend all meetings of its Board of Directors (the “Purchaser Observer”), which such person must be an employee whether in person; telephonic or other) (other than meetings of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings a committee of the Board of Directors and any committee thereofDirectors, and the Company unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Purchaser Observer Observer, concurrently with the members of the Board of Directors, with copies of all notices, minutes, consents consents, and other material materials that it provided to such members (other than in connection therewith at the same time as such materials are distributed to members meetings of a committee of the Board of Directors Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence and trust all information so provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the applicable committee thereofforegoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; provided and provided, further, that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have reserves the right to withhold any information and or to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely thereof if (i) access to the extent that (A) such information or attendance at such meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect could adversely affect the attorney-client privilege between the Company and its counsel counsel; (ii) access to such information or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)Company.

Board Observer Rights. (a) Effective immediately following the Closing and for so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more of the aggregate principal amount of the Note Beneficially Owned The Loan Parties shall allow one representative designated by, from time to time, in writing by the Purchaser immediately following the Closing (provided that, Required Lenders to the extent any portion of such Note has been converted into Company Common Stock, Purchaser attend and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long participate solely as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting observer to the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and in all meetings of the Board board of Directors directors (or other similar body) and any committee thereofof the board of directors (or other similar body) of the Loan Parties (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the Company obligation of the Loan Parties to permit a Board Observer as set forth in this Section 6.18 shall terminate automatically if the Lenders as of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shall, or shall cause its Subsidiary to, as the case may be, (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary at the same time and in the same manner furnished to such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Purchaser Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (v) cause regularly-scheduled Board Meetings of the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all notices, minutes, written consents and duly passed by the board of directors (or other material in connection therewith at the same time as such materials are distributed to members similar body) or committee of the Board board of Directors directors (or the applicable committee thereof; provided that (iother similar body) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting such Loan Party or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable lawsubsidiary. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company Xxxxxxxx shall reimburse the Purchaser Board Observer for its all reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and the Board Observer’s attendance at each meeting the Board Meetings. Each Loan Party shall, and shall cause its Subsidiaries to, indemnify the Board Observer solely in its capacity as the Board Observer (provided that, notwithstanding the foregoing, such indemnity shall not be available to the extent that any losses, damages, claims, liabilities and expenses resulted from (x) the gross negligence, bad faith or willful misconduct of the Board Observer or of Directors (any affiliate, director, officer, employee, counsel, agent or any committee thereof) consistent with reimbursement policies attorney-in-fact of such Board Observer, as determined by the Company applicable to final non-executive directors appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of Directors. All obligations any act or omission of the Company pursuant to this Section 4.06(aBorrower or any of its Affiliates or (z) shall terminate, and, upon request the material breach by the Board Observer or of Directorsany affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the Purchaser shall cause minutes, the Purchaser Observer written consents and all non-public information delivered to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, shall be subject to the confidentiality provisions of Section 10.16, except that the Board Observer may disclose information and materials to the Lenders and their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential). Notwithstanding the forgoing, the Borrower shall 101 be entitled to exclude the Board Observer from any portion of any meeting or from receiving any portion of the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) affect the attorney/client or similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the Borrower or any of its Subsidiaries under applicable Law, (iii) conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest, including as to any discussion and/or materials relating to (I) an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliates.

Board Observer Rights. (a) Effective immediately following the Closing and for so So long as any Loan or other Obligations are outstanding, the Purchaser Borrower shall hold meetings of its board of directors (either in-person or by telephone) at least once every calendar quarter. The Agent and its Affiliates collectively Beneficially Own 50% or more each Lender shall be notified in writing of the aggregate principal amount date and time for each board meeting by notice sent (which may be oral notice) at the same time as notice thereof is sent to the members of the Note Beneficially Owned by the Purchaser immediately following the Closing Borrower's board of directors, and shall receive all reports and other board materials that are provided in writing or electronically (provided that, or otherwise made available) to the extent board members, except any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed that are subject to continue to own such portion attorney-client or other privilege of the Note for purposes Borrower, any Subsidiary or any of calculating their officers or directors. The Agent and the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such conditionLenders, the “Ownership Condition”)collectively, the Purchaser shall have the right to designate have one (1) designated representative, at the Borrower's reasonable expense and subject to reasonable and customary confidentiality obligations, attend such board meetings as an observer; provided, however, such observer shall not constitute a non-voting observer to the Board member of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer board and shall not be entitled to receive notice of and have the right to attend any and all meetings of the Board of Directors and any committee thereof, and the Company shall provide the Purchaser Observer with copies of all notices, minutes, consents and other material in connection therewith at the same time as such materials are distributed to members of the Board of Directors or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to such board; provided, further, that such observer may be required to leave such meetings (or may receive certain materials with redacted portions) to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as extent a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred legal privilege arises in connection with travel to or from and attendance at each meeting of the Board of Directors issues being discussed (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directorsdescribed in such materials), in each case upon case, that reasonably would be expected to be lost if the Purchaser ceasing observer were not to leave or were to receive such redacted information, as applicable. In witness whereof, the parties hereto have caused this Agreement to be duly executed and delivered by their respective representatives thereunto duly authorized as of the right to designate date first written above. BORROWER: EPV SOLAR, INC. By: Name: Title: AGENT: PATRIARCH PARTNERS AGENCY SERVICES, LLC, as the Purchaser Observer pursuant to this Section 4.06(a).Agent By: Xxxx Xxxxxx Manager LENDERS: c/o Patriarch Partners XIV, LLC 32 Avenue of the Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Attention: Loan Administration/EPV Solar XXXXX XX 2005-1, LIMITED By: Patriarch Partners XIV, LLC, its Collateral Manager By: Xxxx Xxxxxx Manager SCHEDULE 2.1 COMMITMENTS Term Loan Commitments Term Loan Lender Term Loan Commitment Xxxxx XX 2005–1, Limited $4,000,000

Board Observer Rights. (a) Effective immediately following the Closing and for For so long as the Purchaser and Strategic Investor or its Affiliates collectively Beneficially Own 50affiliates hold in the aggregate at least 5% or more of the aggregate principal amount outstanding shares of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser or securities convertible into shares of Common Stock of the Company (as adjusted for stock splits, stock dividends, recapitalizations and similar events) that the Strategic Investor purchased pursuant to this Agreement, the Strategic Investor shall have the right, but not the obligation to from time to time require, in writing, the Company to permit a representative of the Strategic Investor (the "Observer") to attend all meetings of its Affiliates Board of Directors (whether in person, telephonic or other) and any committees thereof in a nonvoting observer capacity. Any Observer must be approved by the written consent of the Company's Nominating, Compensation and Corporate Governance Committee and such consent shall not be unreasonably withheld. For the purpose of this calculation, the Strategic Investor shall be deemed to continue to own such portion hold the maximum number of shares of Common Stock which could be acquired by the Strategic Investor upon conversion of the Note for purposes of calculating the principal amount of the Note convertible securities purchased pursuant to this sentence for so long Agreement notwithstanding any limitations on conversion of such convertible securities contained therein. During such time as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right Strategic Investor elects to designate a non-voting observer appoint an Observer pursuant to the Board of Directors (the “Purchaser Observer”)provisions set forth herein, which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings of the Board of Directors and any committee thereof, and the Company shall provide the Purchaser Observer Observer, concurrently with the members of the Board of Directors, with copies of all notices, minutes, consents consents, and other material in connection therewith at the same time as materials that it provides to such materials are distributed to members of the Board of Directors or the applicable committee thereofmembers; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and provided, however, the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereofright, in each caseits sole discretion, solely to meet in confidential executive session, which the extent that (A) such information or meeting relates Strategic Investor's representative will not be entitled to the Transactionsattend, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to if the Board of Directors or any committee thereof or be entitled shall determine in good faith, based upon the advice of counsel, that such confidential executive session is (i) necessary to receive any compensation preserve attorney-client privilege, (ii) in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies best interests of the Company applicable to non-executive directors and where the Strategic Investor has a direct interest in the subject matter under discussion that is divergent from the interests of the Board of DirectorsCompany, or (iii) necessary to discharge the directors' fiduciary duties; and provided further that the Observer agrees to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided. All obligations of The Company shall notify the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of DirectorsStrategic Investor, in each case upon advance, of such confidential executive session and the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)specific rationale for making such meeting confidential.

Board Observer Rights. At all times while this Agreement is in effect that (a) Effective immediately following the Closing and for so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more Owns at least six percent (6%) of the aggregate principal amount outstanding Capital Stock of the Note Beneficially Owned by the Purchaser immediately following the Closing Company, but less than ten percent (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion 10%) of the Note for purposes of calculating the principal amount outstanding Capital Stock of the Note Company, in each case calculated on a fully diluted basis using the treasury method of accounting, and (b) other than any Transfer made pursuant to this sentence for so long as they hold Section 7(b)(iv) of the Purchase Agreement, has not transferred any shares of Company Common Capital Stock issued to Purchaser upon such conversion) (such conditionexercise of the Option to any Person that is not a Permitted Transferee or to any Prohibited Assignee, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting one observer to the Board of Directors (the “Purchaser Observer”)Directors, which so long as such person must be observer is not an employee or non-independent director of the Purchaser or any of its Affiliatessubsidiaries. The Purchaser Observer Such observer’s attendance shall be entitled limited, in their nonvoting observer capacity, to receive notice of and have the right to attend any and all meetings of the Board of Directors Directors, excluding all executive sessions and any committee thereof, and meetings of the Company Board of Directors. Such observer shall provide the Purchaser Observer with receive copies of all notices, minutes, consents and other material in connection therewith at materials with respect to meetings that such observer is entitled to attend; provided, however, that (i) the same time as such materials are distributed observer shall not be entitled to members of vote on any matter submitted to the Board of Directors or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer any of its committees nor to comply with Section 4.08 and (ii) the Company and offer any motions or resolutions to the Board of Directors or such committees; (ii) such observer shall have agree to hold in confidence all information so provided; provided that such observer may share such information with Cronos and its Representatives; and (iii) that the Company reserves the right to withhold any information and to exclude the Purchaser Observer such observer from any meeting or portion thereof, thereof if access to such information or attendance at such meeting would reasonably be expected (in each case, solely the Company’s reasonable judgment) to the extent that result in (A) such information or meeting relates to the Transactionsa violation of applicable Law, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so isthe disclosure of any trade secrets in a manner that would result in any such trade secrets no longer being protected under applicable Law following such disclosure, in (C) a waiver of the opinion protection of outside counsel to the Company, is advisable or necessary to protect the any attorney-client privilege between the Company and its counsel or to prevent violation protection or (D) a conflict of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)interest.

Board Observer Rights. (a) Effective immediately following the Closing and for For so long as 500,000 shares of Series D --------------------- Preferred Stock remain outstanding, the Purchaser and its Affiliates collectively Beneficially Own 50% or more Company shall permit Attractor Investment Management Inc. ("Attractor") to designate one observer who is an --------- employee of Attractor (the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that"Series D Observer"), who initially shall be Xxxxxx ----------------- Xxxxxxx, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting observer to the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and present at all meetings of the Company's Board of Directors and Directors, or any committee thereofthereof which represents at least a majority of the members of the Board of Directors, and to give the Company shall provide the Purchaser Series D Observer with copies notice of all notices, minutes, consents and other material in connection therewith such meetings at the same time as such materials are distributed notice is provided or delivered to members of the Board of Directors or Directors. Board of Directors' materials that are sent to the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer directors prior to comply with Section 4.08 and (ii) the Company and a meeting of the Board of Directors shall have be sent simultaneously by the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely Company to the extent Series D Observer; provided, however, that (A) such information or meeting relates the Company may -------- ------- exclude from the materials sent to the TransactionsSeries D Observer any materials that the Company believes relate directly and substantially to any matter in which Attractor has a business or financial interest. In addition, any agreement between any if the Company receives advice from legal counsel that discussing a specified matter in the presence of a person who is not a member of the Company Group and any member Board of the Purchaser Group, the Commercial Agreement and the related relationshipDirectors, or any dispute between any member sending specified Board of the Company Group and any member of the Purchaser GroupDirectors' materials to such person, or (B) doing so is, might result in the opinion Company's loss of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between with respect to a specified matter, the Company and its counsel may exclude the Series D Observer from a meeting or to prevent violation exclude such Board of applicable law. The Purchaser Observer shall have no right to vote on any matters presented Directors' materials from the materials sent to the Board of Directors Series D Observer, or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observerboth, provided that the Company shall reimburse promptly notify the Purchaser Series D Observer for that any exclusion from a meeting or materials distributed to directors was effected to preserve its reasonable attorney-client privilege or avoid conflicts of interest. Insofar as any possibility of conflict of interest may arise with respect to the Series D Observer, all duties and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting obligations that a member of the Board of Directors (or may have by virtue of the law with respect to such conflict of interest shall apply to the Series D Observer. Attractor and each of its officers, directors, employees and agents, including the Series D Observer, agrees to maintain the confidentiality of any committee thereof) consistent with reimbursement policies information of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request obtained by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)them.

Board Observer Rights. (a) Effective immediately following the Closing and for For so long as the Purchaser and GSK Investor or its Affiliates collectively Beneficially Own own at least 50% or more of the aggregate principal amount of Shares set forth opposite the Note Beneficially Owned GSK Investor’s name on Exhibit A hereto, the GSK Investor may from time to time by the Purchaser immediately following the Closing (provided that, written notice to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long designate one (1) person as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting observer to the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings of the Board of Directors and any committee thereof, and of the Company shall (the “Observer”), which Observer may be removed and replaced at any time by the GSK Investor. During any period in which the GSK Investor has so designated an Observer, the Company shall: (a) provide the Purchaser Observer with copies notice of all notices, minutes, consents regular meetings and other material all special meetings of the Board of Directors in connection therewith the same manner and at the same time as such materials are distributed notice is provided to members of the Board of Directors or the applicable committee thereof; provided that (i) the Purchaser shall cause GSK Investor acknowledges that special meetings of the Purchaser Observer Board of Directors may be held with short notice from time to comply with Section 4.08 and (ii) time depending on the needs of the Company and the unavailability of the Observer to attend any such meetings shall not affect the scheduling and/or proceeding of any such special meeting of the Board of Directors shall have Directors; (b) permit the right Observer to withhold any information attend such meetings as an observer (either in person or by telephone, as applicable, and with respect to exclude in person meetings, upon request by the Purchaser Observer, by telephone) provided that the Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to may be required by the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as temporarily leave a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (i) if the presence of the Observer at such time would reasonably be expected to prevent the Company from asserting the attorney-client or attorney work product privilege with respect to matters discussed before the Board of Directors at such time or (ii) if matters will be discussed or decided relating to transactions in which the GSK Investor or any committee thereofAffiliate thereof or the Observer has a material direct or indirect interest; and (c) consistent provide to the Observer a copy of all materials made available by the Company to the Board of Directors prior to or at such meetings or otherwise (provided that to the extent that the Company determines that the GSK Investor, its Affiliates or the Observer have a conflict of interest with reimbursement policies respect to the subject matter of any such materials or such provision would reasonably be expected to prevent the Company from asserting the attorney-client or attorney work product privilege, the Company may redact such information from the materials) contemporaneously with delivery to the members of the Board of Directors, as applicable. The GSK Investor acknowledges and agrees that upon exercise of its rights under this Section 6.7, the GSK Investor may receive material non-public “inside information” of the Company applicable or its Subsidiaries provided to non-executive directors the Observer either at any meeting of the Board of Directors that the Observer attends or furnished to the Observer pursuant to this Section 6.7 as material distributed to the members of the Board of Directors. All obligations of the Company pursuant The GSK Investor hereby agrees to this Section 4.06(a) shall terminate, and, upon request comply with all applicable securities Laws with respect to any material non-public information obtained by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to the rights granted to the GSK Investor under this Section 4.06(a)6.7. The right of the GSK Investor to designate an Observer under this Section 6.7 shall not in any way be limited, restricted or prohibited by the fact that an Observer is not appointed as of the date hereof.

Board Observer Rights. (a) Effective The Trust agrees that subject to the provisions set forth herein, and the Observer Protocol, Observer may attend, in a non-voting observer capacity, all meetings of the Board and, subject to the immediately following sentence, any and all Committees for the Closing purposes of permitting Observer to have current information with respect to the affairs of the Trust and the actions taken by the Board and for so long as the Purchaser Observer to provide input and its Affiliates collectively Beneficially Own 50% advice with respect thereto (the “Approved Purposes”). The Observer may attend Committee meetings only with the consent of such Committee’s chair, such consent not to be unreasonably withheld or more delayed, provided however, if such Committee is vested with authority to bind the Trust pursuant to Section 6.8 of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such conditionLTA, the “Ownership Condition”), the Purchaser Observer shall have the right to designate attend such Committee’s meetings as if it were a non-voting observer Board meeting (subject to the Board provisions of Directors (the “Purchaser Observer”Section 1(c), which such person must be an employee of the Purchaser or its Affiliates). The Purchaser Observer shall be entitled to receive notice of and have the right to attend be heard at any such Board or Committee meeting and all meetings the Board will consider in good faith recommendations made by the Observer, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; or (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Trust to take, or not to take, any action. Observer will be provided (concurrently with delivery to the Liquidating Trustees of Directors the Trust and any committee thereof, and in the Company shall provide the Purchaser Observer with same manner delivery is made to them) copies of all notices, minutes, consents consents, and all other material in connection therewith at the same time as such materials or information (financial or otherwise) that are distributed provided to members of the Board (other than drafts of Directors or the applicable committee thereof; minutes which will not be provided that (ito Observer) the Purchaser shall cause the Purchaser Observer with respect to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any a meeting or portion thereof, any written consent in each case, solely lieu of meeting (except to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company has been excluded therefrom pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a1(c).

Board Observer Rights. So long as both (ai) Effective immediately following the Closing and for Investor continues to own at least ninety percent (90%) of the shares of Series A Preferred Stock owned by the Investor as of the date of this Agreement (calculated to include shares of Common Stock issued to the Investor upon conversion of such shares of Common Stock, so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more Investor continues to own such shares of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed appropriately adjusted to continue reflect any stock splits, stock dividends, combinations and other recapitalizations) and (ii) the supply agreement between the Company and the Investor has not expired or been terminated (other than (i) a termination thereof by the Company that constitutes a breach of such agreement or (ii) a termination thereof by the Investor due to own such portion of a material breach thereunder by the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”Company), the Purchaser Investor shall have the right be entitled to designate a non-voting observer to the Board of Directors one individual (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall "OBSERVER") who will be entitled to receive notice of and have to attend meetings of the Board, as an observer without any right to vote or provide consent as a director with respect to any matter; PROVIDED, that the foregoing Board observer rights will terminate upon the mutual agreement of the Investor and the Company. The identity of the Observer will be subject to the reasonable approval of the Company, PROVIDED, HOWEVER, that the initial Observer shall be that person named on SCHEDULE 4.4 attached hereto. The Observer will hold in confidence and trust any confidential information received in connection with his role as a Board Observer. In addition, information provided to the Observer, and the Observer's right to attend any and all particular meetings of the Board of Directors and any committee thereofBoard, and will be subject to reduction or elimination, in the Company shall provide the Purchaser Observer with copies of all notices, minutes, consents and other material in connection therewith at the same time as such materials are distributed to members sole good faith judgment of the Board of Directors or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereofBoard, in each case, solely to the extent event that (A) such information or meeting relates such meetings will or might contain or reflect competitively sensitive information or matters that give rise to the Transactions, any agreement between any member an actual or potential conflict of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable lawinterest. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation observation rights provided in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) 4.4 shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)survive a Qualified IPO.

Board Observer Rights. (a) Effective immediately following the Closing and for so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more of the aggregate principal amount of the Note Beneficially Owned The Loan Parties shall allow one representative designated by, from time to time, in writing by the Purchaser immediately following the Closing (provided that, Required Lenders to the extent any portion of such Note has been converted into Company Common Stock, Purchaser attend and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long participate solely as they hold the shares of Company Common Stock issued upon such conversion) (such condition, the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting observer to the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and in all meetings of the Board board of Directors directors (or other similar body) and any committee thereofof the board of directors (or other similar body) of the Loan Parties (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the Company obligation of the Loan Parties to permit a Board Observer as set forth in this Section 6.18 shall terminate automatically if the Lenders as of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shall, or shall cause its Subsidiary to, as the case may be, (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the members of the board of directors (or 107 other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary at the same time and in the same manner furnished to such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Purchaser Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (v) cause regularly-scheduled Board Meetings of the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all notices, minutes, written consents and duly passed by the board of directors (or other material in connection therewith at the same time as such materials are distributed to members similar body) or committee of the Board board of Directors directors (or the applicable committee thereof; provided that (iother similar body) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting such Loan Party or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable lawsubsidiary. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company Xxxxxxxx shall reimburse the Purchaser Board Observer for its all reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and the Board Observer’s attendance at each meeting the Board Meetings. Each Loan Party shall, and shall cause its Subsidiaries to, indemnify the Board Observer solely in its capacity as the Board Observer (provided that, notwithstanding the foregoing, such indemnity shall not be available to the extent that any losses, damages, claims, liabilities and expenses resulted from (x) the gross negligence, bad faith or willful misconduct of the Board Observer or of Directors (any affiliate, director, officer, employee, counsel, agent or any committee thereof) consistent with reimbursement policies attorney-in-fact of such Board Observer, as determined by the Company applicable to final non-executive directors appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of Directors. All obligations any act or omission of the Company pursuant to this Section 4.06(aBorrower or any of its Affiliates or (z) shall terminate, and, upon request the material breach by the Board Observer or of Directorsany affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the Purchaser shall cause minutes, the Purchaser Observer written consents and all non-public information delivered to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, shall be subject to the confidentiality provisions of Section 10.16, except that the Board Observer may disclose information and materials to the Lenders and their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential). Notwithstanding the forgoing, the Borrower shall be entitled to exclude the Board Observer from any portion of any meeting or from receiving any portion of the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) affect the attorney/client or similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the Borrower or any of its Subsidiaries under applicable Law, (iii) conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest, including as to any discussion and/or materials relating to (I) an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliates.

Board Observer Rights. (a) Effective immediately following From the Closing and for so long as date hereof until the Purchaser and its Affiliates collectively Beneficially Own 50% or more of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, first such time that it becomes known to the extent any portion Company that an Observer Shareholder together with its Permitted Transferees collectively cease to hold, beneficially or of record, and have the power to vote or direct the voting of, at least such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such conditionObserver Shareholder’s Original Percentage Threshold, the “Ownership Condition”), the Purchaser Company agrees that such Observer Shareholder shall have the right to designate a non-voting one (1) Board observer to the Board of Directors (the an “Purchaser Observer”), which such person must be . Whenever an employee of the Purchaser or its Affiliates. The Purchaser Observer Shareholder shall be entitled to receive notice of and have the right to designate an Observer pursuant to the preceding sentence, the Company shall (a) provide such Observer, as, if and when distributed to the non-management Directors, (i) copies of all documents distributed to the Board, including notice of all meetings of the Board, all written consents executed by the Board and all materials prepared for consideration at any meeting of the Board and (ii) copies of the minutes related to each meeting of the Board; and (b) invite such Observer to attend any and reasonably participate, but not vote, at all meetings of the Board of Directors and any committee thereof(whether such meetings are held in person, and telephonically or otherwise); provided, however, that the Company shall provide the Purchaser Observer with copies of all notices, minutes, consents and other material in connection therewith at the same time as such materials are distributed to members of the Board of Directors or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have reserves the right to withhold exclude any information and to exclude the Purchaser Observer from any meeting or portion thereof, and to withhold any such materials, if such exclusion or withholding is necessary or advisable to preserve attorney-client, work product or similar privilege or to comply with the terms and conditions of confidentiality agreements with third parties or applicable Law; provided, further, that, as a condition to the Company’s obligations under this sentence, such Observer shall agree to hold in each caseconfidence and trust and to act in a fiduciary manner with respect to all Company Confidential Information. Subject to the following sentence, solely the Company agrees and acknowledges that any Observer may share Company Confidential Information with the Observer Shareholder that designated such Observer, but only upon such Observer Shareholder’s request. Notwithstanding the preceding sentence, prior to receiving any Company Confidential Information, an Observer Shareholder shall enter into a customary non-disclosure agreement with the Company, pursuant to which such Observer Shareholder agrees not to disclose or use for any purpose (other than in relation to its or one or more of its Affiliates’ investment in the Company) any such Company Confidential Information without the prior written consent of the Board, except that Company Confidential Information may be disclosed (i) if required by applicable law, regulation, legal process or pursuant to any request by any legal, regulatory, self-regulatory or government body (provided, that, other than in connection with a routine examination, audit or inspection by any regulatory, supervisory or similar body or authority having or claiming jurisdiction over the Observer Shareholder or one or more of its Affiliates, prior to making such disclosure or, if not practicable in advance, as promptly as practicable thereafter, and to the extent that (A) legally permissible, such information or meeting relates to the Transactions, any agreement between any member of Observer Shareholder shall notify the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing in writing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse may seek a protective order or other appropriate remedy) and (ii) to such Observer Shareholder’s Advisors on a “need to know basis” (provided, that such Advisors agree to keep such Company Confidential Information confidential and to limit their use thereof to such Observer Shareholder’s or one or more of its Affiliates’ investment in the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at each meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(aCompany).

Board Observer Rights. From and after three (a3) Effective immediately Business Days following Agent notifying the Closing and for so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more Loan Parties of the aggregate principal amount name of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, an independent director/manager candidate acceptable to the extent Agent (including any portion of such Note has been converted into Company Common Stockreplacement candidate acceptable to the Agent, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such conditionif applicable, the “Ownership ConditionAcceptable Independent Manager,” and such deadline, the “Board Observer Deadline”), the Purchaser shall have Acceptable Independent Manager shall: (i) be permitted to attend each meeting of the right Board of Managers or similar governing body of Holdings and each other Loan Party that is governed by a Governing Body from time to designate time (collectively, the “Board-Governed Entities”) and each committee and subcommittee thereof (including, without limitation, any special committee and any informal “Executive Committee” of officers and Managers) (such Boards of Managers or other governing bodies, and all such committees and subcommittees, collectively, the “Governing Bodies”), in each case as a non-voting observer to board observer; (ii) receive notice from the Board of Directors (the “Purchaser Observer”), which such person must be an employee Governing Bodies of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice time and place of and have the right to attend any and all meetings each meeting of the Board of Directors Governing Bodies in the same manner and any committee thereof, and the Company shall provide the Purchaser Observer with copies of all notices, minutes, consents and other material in connection therewith at the same time as notice is given to the other members of such Governing Bodies, which notice shall to the extent practicable be given at least two (2) Business Days prior to any such meeting, (c) receive copies of all reports, documents, materials are distributed and information (collectively, the “Meeting Materials”) provided to the members of the Board Governing Bodies of Directors each Board-Governed Entity at the same time and in the same manner as are provided to the other members of such Governing Bodies (whether disseminated in writing, orally, by email or the applicable committee thereof; provided that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 otherwise), and (iid) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer promptly reimbursed for its all reasonable and documented out-of-pocket costs and expenses incurred by the Acceptable Independent Manager in connection with travel his or her board observer work. The Acceptable Independent Manager shall have a duty of confidentiality to each Loan Party comparable to such duty of a director or manager, as applicable, of each Loan Party; provided that the Acceptable Independent Manager shall be permitted to disclose all Meeting Materials and other information discussed in meetings of the Governing Bodies to the Agent, Lenders and their advisors subject to the confidentiality provisions of the Credit Agreement. Notwithstanding the foregoing, each Loan Party shall be permitted to withhold or redact any Meeting Materials, and to exclude the Acceptable Independent Manager from and attendance at each any part of any meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of DirectorsGoverning Body, in each case solely to the extent that the Loan Parties reasonably believe, upon advise of counsel (including internal counsel), that withholding such information is necessary to preserve attorney-client privilege, avoid an actual conflict of interest arising in connection with any discussion of matters being negotiated with the Purchaser ceasing Agent and Lenders, or is otherwise not permitted to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)be so shared by any applicable Governmental Authority.

Board Observer Rights. (a) Effective immediately following the Closing and for For so long as the Purchaser and its Affiliates collectively Beneficially Own 50% an Investor or more subsequent holder of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company Common Stock, Purchaser and its Affiliates shall be Convertible Securities holds or is deemed to continue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the at least One Million Five Hundred Thousand (1,500,000) shares of Company Common Stock issued upon Registrable Securities (subject to adjustment for stock splits, reverse stock splits, stock dividends and other similar transactions with respect to such conversion) (such condition, the “Ownership Condition”shares), the Purchaser Company shall have allow one representative designated by such Investor (the right “Observer”) to designate attend meetings of the Board in a non-voting observer to the Board capacity; provided, however, that no Investor or subsequent holder of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer Convertible Securities shall be entitled to receive notice designate an Observer if such holder or an Affiliate of such holder is entitled to nominate a director to the Board pursuant to the Company’s Amended and have the right to attend any and all meetings Restated Voting Agreement, dated as of the Board of Directors and any committee thereof, and the date hereof. The Company shall provide the Purchaser Observer with copies of all noticesmaterials that are provided by the Company to its directors; provided, minuteshowever, consents and other material in connection therewith at that a majority of the same time as such materials are distributed to members of the Board shall be entitled to recuse the Observer from portions of Directors any Board meeting and to redact portions of any Board or Board committee materials delivered to the applicable committee thereof; provided Observer where and to the extent that such majority determines, in good faith that (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in each case, solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so isrecusal is reasonably necessary, in the opinion of outside counsel to the Company, is advisable or necessary to protect the preserve attorney-client privilege with respect to a material matter, (ii) there exists, with respect to any deliberation or Board materials, an actual or potential conflict of interest between the Investor who has appointed such Observer and the Company and its counsel or (iii) the presence of the Observer would otherwise be materially injurious to prevent violation of applicable law. The Purchaser Observer shall have no the Company in such circumstances; provided, further, that such Investor’s right to vote on any matters presented appoint an Observer to the Board shall automatically expire upon the effectiveness of Directors or any committee thereof or the registration statement for the Company’s Qualified Public Offering. Any Observer will be entitled subject to the confidentiality provisions set forth in Section 2.6. The Observer shall receive any no compensation in his or her capacity as a Purchaser Observer, provided that from the Company for service as an Observer and shall reimburse the Purchaser Observer not be reimbursed for its reasonable and documented out-of-pocket any expenses incurred by the Observer in connection with travel to or from and attendance at each of any meeting of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a)Board.