Common use of BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER Clause in Contracts

BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER. The Company agrees that until such time as the Notes shall have been fully paid or converted that the Due Diligence Fee Recipient shall have the right, but not the obligation, from time to time to designate in writing a nominee to serve as a member of the Board of Directors of the Company. The Company will expeditiously secure the appointment of such designee as Director of the Company not later than the Closing Date. During such time as the Due Diligence Fee Recipient has not exercised such rights, the Due Diligence Fee Recipient shall have the right to designate an observer, who shall be entitled to attend and participate (but not vote) in all meetings of the Board of Directors of the Company and to receive all notices, reports, information, correspondence and communications sent by the Company to members of the Board of Directors. From and after the occurrence of an Event of Default that is not cured during any applicable cure period, the Due Diligence Fee Recipient shall be entitled to appoint a majority of the board of directors of the Company to serve during the pendency of such Event of Default. All reasonable costs and expenses incurred in connection therewith by any such designated Director or observer, or by the Lead Investor on behalf of such Director or observer, shall be reimbursed by the Company to the extent that the Company reimburses such expenses incurred by any directors of the Company. It is provided and agreed that the actions and advice of any person while serving pursuant to this section as a Director or an observer at meetings of the Board of Directors shall be construed to be the actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as the action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with the provisions of the Transaction Documents. The relationship between the Company and the Subscribers is, and shall at all times remain, solely that of the Company with a purchaser of its securities. The Subscribers neither undertake nor assume any responsibility or duty to the Company to review, inspect, supervise, pass judgment upon, or inform the Company of any matter in connection with any phase of the Company’s business, operations, or condition, financial or otherwise. The Company shall rely entirely upon its own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment, or information supplied to the Company by the Subscribers, or any representative or agent of the Subscribers, in connection with any such matter is for the protection of the Subscribers, and neither the Company nor any third party is entitled to rely thereon. It shall be deemed a default of a material obligation under the Notes if Company does not comply with the requirements of this section.

BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER. The Company agrees that until such time as all of the Notes (together with all accrued interest thereon and all other amounts due thereunder) shall have been fully paid or converted into Common Stock that the Due Diligence Fee Recipient Longview Equity Fund, LP (“Lead Investor”) shall have the right, but not the obligation, from time to time to designate in writing a nominee to serve as a member of the Board of Directors of the Company. The Company will expeditiously nominate and use its best efforts to secure the appointment election of such designee as Director of the Company not later than the Closing DateCompany. During such time as the Due Diligence Fee Recipient Lead Investor has not exercised such rights, the Due Diligence Fee Recipient Lead Investor shall have the right to designate an observer, who shall be entitled to attend and participate (but not vote) in all meetings of the Board of Directors of the Company and to receive all notices, reports, information, correspondence and communications sent by the Company to members of the Board of Directors. From and after the occurrence of an Event of Default that is not cured during any applicable cure period, the Due Diligence Fee Recipient shall be entitled to appoint a majority of the board of directors of the Company to serve during the pendency of such Event of Default. All reasonable costs and expenses incurred in connection therewith by any such designated Director or observer, or by the Lead Investor on behalf of such Director or observer, shall be reimbursed by the Company to the extent that the Company reimburses such expenses incurred by any directors of the Company. It is provided and agreed that the actions and advice of any person while serving pursuant to this section as a Director or an observer at meetings of the Board of Directors shall be construed to be the actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as the action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with the provisions of the Transaction DocumentsSecurity Agreement. The relationship between the Company and the Subscribers is, and shall at all times remain, solely that of the Company with a purchaser of its securities. The Subscribers neither undertake nor assume any responsibility or duty to the Company to review, inspect, supervise, pass judgment upon, or inform the Company of any matter in connection with any phase of the Company’s business, operations, or condition, financial or otherwise. The Company shall rely entirely upon its own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment, or information supplied to the Company by the Subscribers, or any representative or agent of the Subscribers, in connection with any such matter is for the protection of the Subscribers, and neither the Company nor any third party is entitled to rely thereon. It shall be deemed a default of a material obligation under the Notes if Company does not comply with the requirements of this section.

BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER. The Company agrees that until such time as 90% of the initial principal amount outstanding on the Notes shall have been fully paid or converted that the Due Diligence Fee Recipient Lead Investor identified on Schedule 8 hereto shall, from time to time, designate in writing an observer to the Board of Directors of the Company. The Lead Investor shall have the right, but not the obligation, from time to time to designate in writing a nominee to serve as a member of the Board of Directors of the Company. The Company will expeditiously secure the appointment of such designee as Director of the Company not later than the Closing Date. During such time as the Due Diligence Fee Recipient has not exercised such rights, the Due Diligence Fee Recipient shall have the right to designate an observer, who shall be entitled to attend and participate (but not vote) in at all meetings of the Board of Directors of the Company and to receive all notices, reports, information, correspondence and communications sent by the Company to members of the Board of Directors. From and after the occurrence of an Event of Default that is not cured during any applicable cure period, the Due Diligence Fee Recipient shall be entitled to appoint a majority of the board of directors of the Company to serve during the pendency of such Event of Default. All reasonable costs and expenses incurred in connection therewith by any such designated Director or observer, or by the Lead Investor on behalf of such Director or observer, shall be reimbursed by the Company to the extent that the Company reimburses such expenses incurred by any directors of the Company. It is provided and agreed that the actions and advice of any person while serving pursuant to this section as a Director or an observer at meetings of the Board of Directors shall be construed to be the actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as the action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with the provisions of the Transaction Documents. The relationship between the Company and the Subscribers is, and shall at all times remain, solely that of the Company with a purchaser of its securities. The Subscribers neither undertake nor assume any responsibility or duty to the Company to review, inspect, supervise, pass judgment upon, or inform the Company of any matter in connection with any phase of the Company’s business, operations, or condition, financial or otherwise. The Company shall rely entirely upon its own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment, or information supplied to the Company by the Subscribers, or any representative or agent of the Subscribers, in connection with any such matter is for the protection of the Subscribers, and neither the Company nor any third party is entitled to rely thereon. It shall be deemed a default of a material obligation under the Notes if Company does not comply with the requirements of this section. The Company agrees to appoint an additional director (“Additional Director”), effective as of the Closing Date, which Additional Director shall be qualified as an “independent director” as that term is employed in Section 103 of Xxxxxxxx-Xxxxx. The Additional Director may be replaced by one or more substitute directors provided same qualify as “independent directors.” Such Additional Director must serve as director for so long as more than 10% of Note principal remains outstanding.

BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER. The Company agrees that until such time as 90% of the initial principal amount outstanding on the Notes shall have been fully paid or converted that the Due Diligence Fee Recipient Subscriber shall have the right, but not the obligation, from time to time to designate in writing a nominee to serve as a member of the Board of Directors of the Company. The Company will expeditiously nominate and secure the appointment election of such designee as Director of the Company not later than the Closing DateCompany. During such time as the Due Diligence Fee Recipient Subscriber has not exercised such rights, the Due Diligence Fee Recipient Subscriber shall have the right to designate an observer, who shall be entitled to attend and participate (but not vote) in all meetings of the Board of Directors of the Company and to receive all notices, reports, information, correspondence and communications sent by the Company to members of the Board of Directors. From and after the occurrence of an Event of Default that is not cured during any applicable cure period, the Due Diligence Fee Recipient shall be entitled to appoint a majority of the board of directors of the Company to serve during the pendency of such Event of Default. All reasonable costs and expenses incurred in connection therewith by any such designated Director or observer, or by the Lead Investor Broker on behalf of such Director or observer, shall be reimbursed by the Company to the extent that the Company reimburses such expenses incurred by any directors of the Company. It is provided and agreed that the actions and advice of any person while serving pursuant to this section as a Director or an observer at meetings of the Board of Directors shall be construed to be the actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as the action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with the provisions of the Transaction Documents. The relationship between the Company and the Subscribers is, and shall at all times remain, solely that of the Company with a purchaser of its securities. The Subscribers neither undertake nor assume any responsibility or duty to the Company to review, inspect, supervise, pass judgment upon, or inform the Company of any matter in connection with any phase of the Company’s business, operations, or condition, financial or otherwise. The Company shall rely entirely upon its own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment, or information supplied to the Company by the Subscribers, or any representative or agent of the Subscribers, in connection with any such matter is for the protection of the Subscribers, and neither the Company nor any third party is entitled to rely thereon. It shall be deemed a default of a material obligation under the Notes if Company does not comply with the requirements of this section.

BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER. The Company agrees that until such time as the Notes shall have been fully paid or converted that the Due Diligence Fee Recipient Lead Investor shall have the right, but not the obligation, from time to time to designate in writing a nominee to serve as a member of the Board of Directors of the Company. The Company will expeditiously nominate and secure the appointment election of such designee as Director of the Company not later than the Closing DateCompany. During such time as the Due Diligence Fee Recipient Lead Investor has not exercised such rights, the Due Diligence Fee Recipient Lead Investor shall have the right to designate an observer, who shall be entitled to attend and participate (but not vote) in all meetings of the Board of Directors of the Company and to receive all notices, reports, information, correspondence and communications sent by the Company to members of the Board of Directors. From and after the occurrence of an Event of Default that is not cured during any applicable cure period, the Due Diligence Fee Recipient shall be entitled to appoint a majority of the board of directors of the Company to serve during the pendency of such Event of Default. All reasonable costs and expenses incurred in connection therewith by any such designated Director or observer, or by the Lead Investor on behalf of such Director or observer, shall be reimbursed by the Company to the extent that the Company reimburses such expenses incurred by any directors of the Company. It is provided and agreed that the actions and advice of any person while serving pursuant to this section as a Director or an observer at meetings of the Board of Directors shall be construed to be the actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as the action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with the provisions of the Transaction Documents. The relationship between the Company and the Subscribers is, and shall at all times remain, solely that of the Company with a purchaser of its securities. The Subscribers neither undertake nor assume any responsibility or duty to the Company to review, inspect, supervise, pass judgment upon, or inform the Company of any matter in connection with any phase of the Company’s 's business, operations, or condition, financial or otherwise. The Company shall rely entirely upon its own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment, or information supplied to the Company by the Subscribers, or any representative or agent of the Subscribers, in connection with any such matter is for the protection of the Subscribers, and neither the Company nor any third party is entitled to rely thereon. It shall be deemed a default of a material obligation under the Notes if Company does not comply with the requirements of this section.