Common use of Observation Rights Clause in Contracts

Observation Rights. Pursuant to the terms of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.

Observation Rights. Pursuant The Companies shall invite (by written notice given to the terms Purchaser) two (2) representatives of this Agreement, the Observers shall be entitled Purchaser to attend, as observers, attend in a non-voting observer capacity all meetings of the Company's Board of Directors (of the Companies and committees thereof including telephonic meetings); all executive sessions of the Boards and committees, and all meetings of the stockholders of the Companies, provided, however, that no such representatives shall attend meetings of independent directors of the Companies only, so long as exclusion from such meetings is required by the Sxxxxxxx-Xxxxx Act of 2002 as evidenced by a legal opinion delivered by outside legal counsel chosen by the Parent and reasonably agreed to by the Purchaser (a) with the Company's Board cost of Directors may require that such legal opinion being borne by the ObserversParent), or either of them, not attend any particular Board meeting or be excused from any portions of the meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares Parent where the Parent discusses refinancing options and other matters in each case related to Purchaser. Notice of such meetings shall be given to Purchaser in the same manner and at the same time as to the directors, committee members and/or stockholders of the Company's Common Stock. Should Companies, as the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should case may be asked (which in any event shall not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five be less then forty-eight (548) business days hours prior to such meeting unless otherwise agreed to by Purchaser in writing). Purchaser shall be provided with copies of all information (including a meetingmeeting agenda, with a written explanation detailing if one is prepared) that is provided to such directors, committee members and/or stockholders (whether prior to, at, or subsequent to any such meetings), at the reasons for the exclusion; same time as such materials are provided that the Company's Board of Directors may not exclude one or both to such directors, committee members and/or stockholders, and (c) copies of the Observers from minutes of all meetings or portions of such directors, committee members and/or stockholders (other than meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors of the Companies and/or Parent or portions thereof which the Purchaser’s representatives are prohibited from attending pursuant to the first sentence of this Section 2.1), concurrently with the distribution of such minutes to such directors, committee members and/or stockholders, but in no event later than forty-five (45) days after each such meeting. Each of the Companies shall ensure that no board, committee or other governing body of it meets in any informal capacity without the Observers being a representative of Purchaser in attendance and for so long as such individual is entitled to attend Board meetings, such individuals observance. Purchaser’s rights under this Section 2.1 shall be provided with effective until the same meeting notices later of (i) the payment by the Parent of all of its outstanding obligations under the Notes and materials as (ii) the members rights under this Section 2.1 are no longer necessary to qualify under the “Venture Capital Operating Company” exemption of the Company's Board Employee Retirement Income Security Act of Directors1934, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawdetermined in the sole discretion of the Purchaser.

Observation Rights. Pursuant In addition to the terms rights to nominate one or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this AgreementSection, the Observers term “Observation Rights” shall be entitled mean the right of Buyers or their affiliates to attend, have a representative (an “Observer”) attend as observers, an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Company's Board Boards of Directors (including telephonic meetings); provided, however, of the Company and its Subsidiaries and their respective committees at the same time that (a) notice of such meetings is given to the Company's Board directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may require that participate in a meaningful manner in discussions of matters brought to the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary and shall be permitted to be considered by pose questions and the Board of Directors without shall provide complete responses to the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% questions posed. For the avoidance of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meetingdoubt, the Board must provide Observer shall not be deemed to the Observers, at least five (5) business days prior to such be a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board member of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without or any committee of the Observers being Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attendance and for so long as attending such individual is entitled to attend Board meetings, such individuals shall be provided with meetings on the same meeting notices and materials as basis that the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consentsdirectors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observers may opt Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to terminate the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their Observation rights effective upon 5 business days affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, following which time the Observers will no longer be provided disclose such material and information in accordance with meeting notices and material. Upon electing to terminate their status as Observersapplicable laws or legal process, the Observers will in no way be considered by the Corporation to be insiders any litigation or affiliates, unless required by applicable lawother proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. Pursuant (i) The Company will offer to each Holder who owns at least 1,500,000 Shares (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits, and the terms like), for any period during which an authorized representative of this Agreementsuch Holder is not a member of the Company’s Board of Directors, the Observers shall be entitled an invitation to attend, as observers, such Holder’s authorized representative to attend all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's ’s Board of Directors, including but not limited executive sessions and committees thereof, and in connection therewith shall provide to such representative copies of all proposed notices, minutes, consents, and final resolutionsother materials that it provides to its directors. Such representative may participate in discussions of matters brought before the Board of Directors, minutes but shall in all other respects be a nonvoting observer; provided, that the Company reserves the right to withhold any information and written consents. Notwithstanding anything to exclude such representative(s) from any meeting or portion thereof if access to such information or attendance at such meeting (A) could adversely affect the contrary hereinattorney-client privilege between the Company and its counsel, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to (B) result in disclosure of trade secrets, (C) involves a conflict of interest, (D) if such representative(s) is affiliated with a competitor of the Company. (ii) The Company will offer to Xxxxxx Xxxxxx Jurvetson and its affiliates (“DFJ”) so long as DFJ continues to own at least 1,500,000 Shares (as presently constituted and subject to subsequent adjustments for stock splits, following which time stock dividends, reverse stock splits, and the Observers like), an invitation to DFJ’s authorized representative to attend all meetings of the Company’s Board of Directors, including executive sessions and committees thereof, and in connection therewith shall provide to such representative copies of all notices, minutes, consents, and other materials that it provides to its directors. Such representative may participate in discussions of matters brought before the Board of Directors, but shall in all other respects be a nonvoting observer; provided, that the Company reserves the right to withhold any information and to exclude such representative(s) from any meeting or portion thereof if access to such information or attendance at such meeting (A) could adversely affect the attorney-client privilege between the Company and its counsel, (B) result in disclosure of trade secrets, (C) involves a conflict of interest, (D) if such representative(s) is affiliated with a competitor of the Company. (iii) The Company will no longer offer to Nokia Growth Partners III, L.P. and its affiliates (“NGP”) so long as NGP continues to own at least 1,500,000 Shares (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits, and the like), an invitation to NGP’s authorized representative to attend all meetings of the Company’s Board of Directors, including executive sessions and committees thereof, and in connection therewith shall provide to such representative copies of all notices, minutes, consents, and other materials that it provides to its directors. Such representative may participate in discussions of matters brought before the Board of Directors, but shall in all other respects be provided a nonvoting observer; provided, that the Company reserves the right to withhold any information and to exclude such representative(s) from any meeting or portion thereof if access to such information or attendance at such meeting (A) could adversely affect the attorney-client privilege between the Company and its counsel, (B) result in disclosure of trade secrets, (C) involves a conflict of interest, (D) if such representative(s) is affiliated with meeting notices and material. Upon electing to terminate their status as Observers, a competitor of the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawCompany.

Observation Rights. Pursuant to the terms The Holder of this Agreement, the Observers Warrant shall (a) receive ------------------ notice of and be entitled to attend, as observers, attend or may send a representative to attend all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; a non-voting observation capacity and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% receive copies of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary all correspondence, notices, packages and rare circumstance exists such that the Observers, or either of them, should be asked not documents and other information provided to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of DirectorsDirectors (including actions taken or to be taken by the Board of Directors on written consent) from the date hereof until such time as the indebtedness evidenced by the Note has been paid in full. Holder acknowledges that the relationship between it and the Company places Holder in a position to learn confidential information, including but not limited to copies of all proposed both written and final resolutionsoral, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to about the Company's business operations, following financial condition, assets and affairs. For purposes of this agreement, all such information to be provided, together with any other information regarding the Company that has already been provided to Holder or its representative and employees, is hereinafter collectively referred to as the "Sensitive Material." Holder acknowledges that it is aware, and that it will advise its officers, directors, employees, advisors and other representatives that federal and state securities laws prohibit any person who has received from an issuer material, non-public information about the issuer and matters which time are the Observers subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Neither the Company nor its affiliates nor their representatives, agents, employees or other related persons will no longer have any liability to Holder, its employees, agents or representatives or any third parties resulting from the use of the Sensitive Material by Holder which Holder acknowledges to be provided with meeting notices the Company's property, to itself and materialagrees not to use, reveal, transfer, copy or disclose such Sensitive Material, directly or indirectly, to any other person for any purpose without the prior written consent of Company. Upon electing Holder agrees to terminate their status as Observers, the Observers will in no way be considered execute any additional confidentiality agreement reasonably required by the Corporation to be insiders or affiliates, unless required by applicable lawCompany in connection with any Sensitive Material.

Observation Rights. Pursuant To the extent that, at any time after the Closing Date, and during the Applicable Period, a representative of the Purchaser shall not be a member of the Company's board of directors, a representative of the Purchaser designated by the Purchaser from time to time in its sole discretion (the terms of this Agreement, the Observers "PURCHASER REPRESENTATIVE") shall be entitled to attend, attend as observers, an observer all meetings of the Company's Board board of Directors directors of the Company (including including, but not limited to, any and all committees thereof and telephonic meetingsmeetings with respect thereto); provided, however, that (a) the Company's Board board of Directors directors may require that the Observers, or either of them, Purchaser Representative not attend any particular Board meeting of the Company's board of directors or committees thereof or be excused from any portions of such meetings that involve matters or business that the Company's Board board of Directors, directors determines in its reasonable discretion, determines involve good faith are matters or business necessary to that must be considered by the Board Company's board of Directors directors (or the applicable committee thereof) without the Observers Purchaser Representative being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such provided, however, that the Observers, or either of them, should Purchaser Representative shall not be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five excluded from any two (52) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation mattersconsecutive meetings. Except with respect to matters or business as to which the Company's Board board of Directors directors has determined should that must be considered by the Board board of Directors directors (or the applicable committee thereof) without the Observers Purchaser Representative being in attendance and for so long as such individual is entitled to attend Board meetingsattendance, such individuals the Purchaser Representative shall be provided with the same meeting notices and materials as the members of the Company's Board of DirectorsDirectors (including, including but not limited to without limitation, any and all committees thereof), including, without limitation, copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything The Company shall, at all times during the Applicable Period during which a Purchaser Director shall not be a member of the Company's board of directors, allow the Purchaser Representative (or such other person designated by the Purchaser Representative from time to time) to be present at the contrary hereinbusiness offices of the Company during regular business hours and the Company further covenants to provide to such Purchaser Representative (and such designee, the Observers may opt to terminate their Observation rights effective if any), during regular business hours, upon 5 business days written seventy-two (72) hours notice to the Chief Executive Officer of the Company, following which time access to all of the Observers will no longer Company's books, records, files, documentation and other information related to the past, present and/or future operations of the Company and any of its subsidiaries or its parent, if any, that are located at the business offices of the Company or that can be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered obtained by the Corporation Company without unreasonable cost or effort, and that would normally be available to a member of the Company's Board of Directors or audit or other committee of the Board of Directors in the exercise of his responsibility and fiduciary duties as such. The right of the Purchaser Representative (and designee, if any) to attend board meetings and have access to the Company information, including to be insiders or affiliatespresent at the Company's offices, unless required by applicable lawis conditioned upon receipt from Purchaser and such Purchaser Representative (and designee, if any) of a confidentiality agreement containing prohibitions on disclosure of the Company's Confidential Information (defined below) and using such Confidential Information to the detriment of the Company and/or its shareholders, which agreement shall be in form and substance reasonably satisfactory to the Company and the Purchaser.

Observation Rights. Pursuant to the terms of this Agreement, the Observers The Holder shall be entitled to appoint one Person (the “Holder Appointee”) to attend, as observersa non-voting observer, each meeting of the Board of Directors, or any committee thereof, whether such meeting is conducted in person or by telephone. The Holder Appointee shall be entitled to receive, with respect to each meeting of the Board of Directors or any committee thereof: (a) (i) written notice of each regular meeting at least ten (10) days in advance thereof and (ii) written notice of each special meeting at least two (2) Business Days in advance of such meeting, but, in any case involving any such regular or special meeting, such notice shall be delivered no later than the date on which the members of the Board of Directors or the committee, as applicable, are notified of such meeting, and (b) any and all information provided in connection with each such meeting to all other potential attendees of such meeting, in each case at the time and in the same manner as provided to such other attendees. Additionally, the Holder Appointee shall receive copies of all other notices, minutes, consents and other material items that the Company provides to its directors at the same time and in the same manner as provided to such directors. The Holder Appointee shall receive reimbursement from the Company for any and all reasonable out-of-pocket expenses incurred in connection with attending any and all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or committee thereof. The Holder shall be excused from entitled to fill any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered vacancy caused by the Board resignation, death or removal of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% a prior Holder Appointee. As of the outstanding shares of date hereof, the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked Holder has elected not to attend all or part of appoint a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawHolder Appointee.

Observation Rights. Pursuant Until such time as the earlier to occur of (a) Nortel Networks no longer holds any Loans or Commitments hereunder or (b) the Debt Service Coverage Ratio of the Borrower or its Consolidated Subsidiaries has equaled or exceeded 1.00 to 1.00 (if calculated prior to the Amortization Commencement Date, determined on a pro forma basis as if the Amortization Commencement Date had occurred four fiscal quarters prior to such date of calculation) for a period of four consecutive fiscal quarters, the Borrower and/or Holdings shall give Nortel Networks notice of each meeting of the Board of Directors of Holdings and each meeting of any committee of the Board of Directors of Holdings not less than ten Business Days prior to the dates CREDIT AGREEMENT - Page 76 84 of any such meetings and allow a Person designated by Nortel Networks to serve as an observer (the "Observer") who may attend all such meetings of the Board of Directors of Holdings and any committee of the Board of Directors of Holdings. The Observer will not be a director, nor entitled to vote on any matter submitted to the Board of Directors of Holdings (or any committee of such board), and will have no rights, duties, liabilities or obligations of a director. The Observer may be excused at the request of a majority of the directors present at any such meetings for discussions involving sensitive information regarding competitors of Nortel Networks or Nortel Networks itself. The Observer may share any information gained from presence at such meetings with the employees, officers, directors, attorneys and advisors of Nortel Networks who have a need to know such information in the performance of their duties (collectively, the "Representatives"), but such information shall otherwise be kept confidential by Nortel Networks and its Representatives to the same extent that financial information with regard to Holdings is required to be kept confidential in accordance with the terms of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.

Observation Rights. Pursuant For so long as Apollo and its Affiliates continue to hold at least $22,500,000 of the Mezzanine Notes, Apollo shall have the right to have one (1) representative present (whether in person or by telephone) at all meetings of the boards of the Company and its Subsidiaries (and audit committees thereof); provided that such representative shall not be entitled to vote at such meetings; and provided further that such representative is reasonably acceptable to the terms Company. The Company shall send to such representative all of this Agreementthe notices, information and other materials that are distributed to Directors, and shall provide Apollo with a notice and agenda of each meeting of the boards (and audit committees thereof) of the Company and its Subsidiaries, at the same time as delivered to the Directors. Apollo shall provide notice to the Company of the identity and address of, or any change with respect to the identity or address of, their representative. Notwithstanding the foregoing, the Observers Company or its Subsidiaries, as applicable, shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board excuse such representative of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused Apollo from any portions portion of meetings that involve a meeting of the boards (or audit committee thereof) which discusses any matters directly relating to Apollo, the Mezzanine Notes or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; Mezzanine Notes Indenture and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% withhold information from the Apollo representative delivered to the boards (or audit committees thereof) prior to a meeting of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observersapplicable board (or audit committee thereof), or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to each case if the Company, following which time or its Subsidiaries, as applicable, believes there is a reasonable likelihood that the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered receipt of such information by the Corporation Apollo representative would create a conflict of interest for the Apollo representative or affect the attorney/client privilege of the Company and its legal advisors or its Subsidiaries or their legal advisors, as applicable. The Company shall reimburse or shall cause its Subsidiaries to be insiders reimburse the Apollo representative for all reasonable travel and other out-of-pocket expenses incurred by the Apollo representative in connection with attending board or affiliates, unless required by applicable lawcommittee meetings.

Observation Rights. Pursuant to the terms of this AgreementAt any time Perseus-Soros BioPxxxxxceutical Fund, the Observers shall be entitled to attend, LP ("PERSEUS-SOROS") anx xxx Affiliates (as observers, all meetings such term is defined in Rule 405 of the Company's Board of Directors (including telephonic meetings); provided, however, that (aSecurities Act) the Company's Board of Directors may require that the Observers, or either of them, are not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by represented on the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for pursuant to Section 3.7, so long as such individual Perseus-Soros owns at least 1.0xx xeast 25% of the shares of the Series A Preferred Stock acquired by it on the date hereof or 10% of the outstanding shares of Common Stock on an "as-converted basis," Perseus-Soros shalx xxxe the Company's Common Stock. Should right to (a) appoint a non-voting representative (the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not "OBSERVER") to attend all or part meetings of a Board meetingthe Board, to change the Board must provide non-voting representative so appointed at any time and, upon the resignation of such representative for any reason, to the Observers, at least five (5) business days prior to reappoint such a meetingrepresentative, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance if and for so long as Perseus-Soros does xxx have a representative on the Board; (b) make proposals, recommendations and suggestions to the Company's officers and directors relating to the business and affairs of the Company at such individual is entitled reasonable times as may be requested by Perseus-Soros but xx xx event shall the Company be required to attend Board meetingsaccept such proposals, such individuals shall be provided recommendations or suggestions; (c) discuss the Company's business and affairs with the Company's officers, directors and independent accountants at such reasonable times as may be requested by Perseus-Soros; (d) xxxx access to such other information relating to the affairs of the Company as Perseus-Soros may xxxxxnably request; and (e) have access to the properties and facilities of the Company at such reasonable times as may be requested by Perseus-Soros. In xxxxxion, the Company shall provide Perseus-Soros with x xxpy of any materials to be distributed or discussed at such meetings at the same meeting notices and materials time as the provided to members of the Company's Board Board. The Observer may be excluded from any meeting or portion thereof and Perseus-Soros may xx xxcluded from access to certain information and the properties and facilities of Directors, including but not limited to copies of all proposed the Company if and final resolutions, minutes and written consents. Notwithstanding anything to the contrary hereinextent a majority of the Board reasonably determines in good faith that such Observer's attendance at such meeting or portion thereof or Perseus-Soros's rexxxxx xf such information or access to the properties and facilities of the Company would adversely affect the attorney-client privilege between the Company and its counsel, involve a conflict of interest between the Observers may opt Company and Perseus-Soros with xxxxect to terminate a material issue for the Company or might violate any requirement of law, contract or confidentiality by which the Company is bound. To the extent the information is non-public, Perseus-Soros covexxxxx and agrees that it will not divulge such confidential information until such time as such information (1) is or becomes generally available to the public other than as a result of a disclosure by Perseus-Soros or ixx xxfiliates or their Observation rights effective upon 5 business days respective representatives, (2) was within Perseus-Soros's poxxxxxxxn prior to its being furnished to Perseus-Soros by ox xx behalf of the Company pursuant hereto, provided that the source of such information was not bound by a non-disclosure or confidentiality agreement with respect to such information, or (3) becomes available to Perseus-Soros on a xxx-confidential basis from a source other than the Company or any of its representatives, provided that such source is not bound by a non-disclosure or confidentiality agreement with the Company with respect to such information or is not otherwise prohibited from transmitting the information to Perseus-Soros. If Xxxxxus-Soros becoxxx xegally obligated to disclose confidential information by any governmental entity with jurisdiction over it or pursuant to any proceeding (by oral questions, interrogations, requests for information or documents, subpoena, civil investigative demand or similar process) (each a "PROCEEDING"), Perseus-Soros will xxxx the Company prompt written notice to allow the CompanyCompany to seek a protective order or other appropriate remedy. Such notice must include, following which time without limitation, identification of the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation information to be insiders or affiliates, unless so disclosed and a copy of the order (to the extent not prohibited in connection with any such Proceeding). Perseus-Soros will xxxxlose only such information as is legally required by applicable lawand will use commercially reasonable efforts to obtain confidential treatment for any confidential information that is so disclosed. Any such disclosure shall not be in violation of this Section 8.1.

Observation Rights. Pursuant The Company agrees to (i) give the holders of the Preferred Stock and Registrable Securities at least seven business days prior written notice of each meeting of the Board of Directors of the Company (a "Board Meeting"), (ii) permit one representative designated by the holder or holders of at least 66-2/3% of the Preferred Stock and Registrable Securities then outstanding to serve as an observer at each Board Meeting, and (iii) deliver to the holders of the Preferred Stock and Registrable Securities copies of (a) all reports and other materials delivered to the Board of Directors of the Company or any Subsidiary in connection with each Board Meeting, or submitted to such Board of Directors of the Company or any Subsidiary in connection with any proposed action to be taken by written consent of such Board of Directors, and (b) the minutes of each Board Meeting (and any resolutions that such Board of Directors passed pursuant to such written consent in lieu of a Board Meeting), certified as true and correct by the Secretary or Assistant Secretary of the Company or any Subsidiary, as the case may be, as soon as the same are available and in any event within 30 days after each such Board Meeting or within 10 days after the adoption of any resolution pursuant to such written consent; provided that if the minutes of any such Board Meeting have not been approved within such 30 day period, the Company shall furnish drafts of such minutes in the form expected to be approved by the Board of Directors. Upon the request of the holders of 66-2/3% of the Preferred Stock and Registrable Securities then outstanding, the holders may receive notice of the meetings of the Board of Directors of the Subsidiaries of the Company and designate an observer to attend such meetings in the same manner as is provided for Board Meetings in clauses (i) and (ii) of the immediately preceding sentence. So long as the Company shall be in default in the performance or observance of the terms and conditions of this Agreement, the Observers Rights Agreement or the Statement of Designation, all costs associated with the observation of any Board Meeting pursuant to this Section 5.5 shall be entitled to attend, as observers, all meetings of borne by the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.

Observation Rights. Pursuant to (i) As long as Whack owns at least 250,000 shares of the terms of this AgreementAMCF Common Stock received hereunder, the Observers WHEC shall be entitled to attendthe right to appoint a non-voting Observer to AMCF’s Board. In the event such designee appointed by WHEC shall for any reason cease to serve as the Observer, as observersWHEC shall have the right to appoint a replacement thereof; provided however, all meetings of that in no event shall AMCF or AMCF’s Board have the Company's Board of Directors (including telephonic meetings)right to remove the Observer; provided, howeverfurther that such subsequent observer shall have been subjected to the same or similar background and diligence check prior to exercising any Observer Rights. WHEC shall have the right to designate a different person as the Observer at any time upon notice to AMCF. (ii) Subject to Section 6.1(c)(v) hereof, the Observer shall have all of the rights and privileges of a member of AMCF’s Board; provided, that (a) in no event shall the Company's Observer be deemed to be a member of AMCF’s Board of Directors may require or have the right to vote on any matter under consideration by AMCF’s Board. In the event that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that Observer exercises the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary Observation Right pursuant to be considered by Section 6.1(c)(v) hereof and the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% terms of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meetingObserver Agreement, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals Observer shall be provided with all notices of meetings, minutes and other materials provided to members of AMCF’s Board no later than one day after the same meeting notices and Observer exercises the Observation Right with the provision of such materials as to the members of AMCF’s Board. All meetings of AMCF’s Board shall be held in a manner such that the Company's Observer shall be able to participate therein either in person or telephonically. In the event that the Observer is unable to attend a meeting of AMCF’s Board, WHEC shall have the right to send an alternate in the Observer’s place to attend such meeting. (iii) AMCF shall reimburse the Observer on a quarterly basis for the reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at AMCF’s Board meetings, all of Directorswhich expenses shall be subject to pre-approval by AMCF following submission to AMCF of reasonably detailed accounting of any such expenses prior to any reimbursement. (iv) AMCF shall grant and provide to the Observer the indemnity as provided under the Board Observer Agreement. In the event that the initial Observer (or any subsequent Observer, including but as the case may be) is replaced for any reason pursuant to Section 6.1(c)(i), AMCF agrees to enter into a board observer and indemnity agreement with such replacement Observer that is substantially identical to the Board Observer Agreement entered into as of the date hereof with the initial Observer (or such subsequent Observer, as the case may be). (v) AMCF shall not limited disclose any material non-public information to copies the Observer unless the Observer has consented to receive such information and executed an agreement concerning the confidentiality of all proposed and final resolutions, minutes and such information. Prior to each time when AMCF’s Board transacts business by meetings or by written consents. Notwithstanding anything , AMCF shall notify the Observer if there will be material non-public information concerning the matters brought for consideration by AMCF’s Board and the Observer shall advise AMCF if he/she elects to exercise the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawRight.

Observation Rights. Pursuant (a) For so long as RedBird and its affiliates “Beneficially Own” (as defined by Rule 13d-3 promulgated under the Securities and Exchange Act of 1934, as amended) at least 5.0% or more of the outstanding shares of common stock of the Company in the aggregate or until this Agreement is terminated in accordance with its terms, RedBird shall have the right to designate one non-voting board observer (the “Observer”). The Observer shall have the right to (i) attend all meetings of the board of directors of the Company (the “Board”) and the Audit Committee of the Board (the “Audit Committee”) in a non-voting, observer capacity and (ii) receive copies of all notices, minutes, consents and other materials that the Company provides to the terms Board and the Audit Committee in the same manner as such materials are provided to the Board or the Audit Committee, as applicable; provided, that, (x) the Observer shall not be entitled to vote on any matter submitted to the Board nor to offer any motions or resolutions to the Board, and the Observer’s presence or absence at any meeting of the Board will not be relevant for purposes of determining whether there is a quorum, and (y) the Company may withhold information or materials from the Observer and exclude the Observer from any executive sessions and/or all or any portion of any meeting or discussion of the Board and the Audit Committee, in each case of this clause (y), if the Company determines in good faith that access to such information and/or materials or attendance at such meeting or portion thereof would be reasonably likely to (A) result in the waiver of attorney-client (or other similar) privilege, (B) adversely affect the Company under applicable regulations or laws or be in contravention of any agreement or arrangement with any governmental authority, or (C) result in an actual or potential conflict of interest between the Company, on the one hand, and RedBird, any of its affiliates or the Observer, on the other hand, as determined by the Company in good faith. For the avoidance of doubt, a conflict of interest shall be presumed to exist where the subject matter relates to a transaction, proceeding or other matter in which RedBird or any of its affiliates are or may be interested parties. The Company shall provide virtual or telephonic access to any meeting of the Board and the Audit Committee that is held virtually or telephonically, as applicable, for the Observer. (b) The initial Observer shall be Xxxxxx Xxxxx. RedBird may, at its discretion, designate an alternate person to act as Observer, including, but not limited to Xxxxxx Xxxxxxxxx or Xxxxxxxxx Xxxxxxxxx (the “Approved Alternates”); provided, that, except in the case of the Approved Alternates, the Board may reasonably object to any such proposed alternate designee within ten (10) business days following receipt of notice (which may be delivered via email) of such proposed alternate designation, in which case RedBird and the Company shall cooperate in good faith to find a mutually agreeable alternate designee. (c) Without limiting any other provision of this Agreement, the Observers Observer shall be entitled subject to attendthe same obligations as the non-employee director members of the Board with respect to confidentiality, conflicts of interest, distribution of information about the Company, and compliance with the Company’s securities trading policies. The Observer shall provide, prior to attending any meetings or receiving any information or materials, such reasonable assurances to such effect as observersmay be requested by the Company. Such assurances may, all meetings at the discretion of the Company's Board of Directors (including telephonic meetings); provided, however, include requesting the Observer to execute an agreement to that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable laweffect.

Observation Rights. Pursuant Prior to the terms of this AgreementMaturity Date (and thereafter to the extent that the Lender shall not be entitled to designate directors pursuant to a written agreement between Harvard and the Lender), the Observers Lender shall have the right (effective upon the Closing Date) to designate by written notice to Harvard one employee or agent of the Lender, who will receive reasonable notice of, and be entitled to attend, as observers, all meetings of the Company's Board of Directors of Harvard (the "Board of Directors") as a nonvoting observer (the "Observer"). Harvard or the applicable members of the Board of Directors will give the Observer oral or written notice of each meeting of the Board of Directors (including telephonic meetings); provided, however, that (awhether annual or special) at the Company's same time and in the same manner as oral or written notice is given to the applicable members of the Board of Directors (which notice may require that be waived by the ObserversObserver). Notwithstanding the foregoing, or either if the Observer attends (or, in the case of thema telephonic meeting, not attend listens by telephone to) any particular Board such meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretionthen the Observer shall be deemed to have had proper notice of such meeting. Notwithstanding anything contained herein to the contrary, determines involve matters or business necessary the failure of the Observer to be considered given notice of a meeting of the Board of Directors pursuant to the immediately preceding two sentences or to attend such meeting shall not in any way affect the authority of the Board of Directors to have or to adopt resolutions at such meeting or the legitimacy of any actions taken by the Board of Directors without at such meeting. Subject to the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of foregoing, Harvard will permit the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not Observer to attend all or part (or, in the case of a Board telephonic meeting, the Board must provide to the Observers, at least five (5listen by telephone to) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board each meeting of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without as a non-voting observer. Harvard shall provide the Observers being in attendance Observer all written materials and for so long as such individual is entitled other information (including copies of meeting minutes) given to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors in connection with any such meeting at the same time as such information is delivered to the members of the Board of Directors and, if the Observer does not attend (or, in the case of a telephonic meeting, does not listen by telephone to) a meeting of the Board of Directors, including but not limited to copies Harvard shall, promptly following such meeting of all proposed and final resolutionsthe Board of Directors, provide the written minutes and written consents. Notwithstanding anything or an oral summary of the meeting from the Secretary of Harvard to the contrary hereinObserver. Prior to attending or listening to any meeting of the Board of Directors or obtaining any documents or summaries of such meetings, the Observers may opt Observer shall agree in writing to terminate their Observation rights effective upon 5 business days be bound by the same duties of confidentiality, good faith and loyalty as if such Observer were a director of Harvard. If Harvard wishes to take any action by written consent of the Board of Directors in lieu of a meeting, then Harvard shall circulate such written consent to the Observer at the same time it circulates such instrument for signature by the directors, and shall give prompt written notice of any action taken pursuant thereto to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawObserver.

Observation Rights. Pursuant Each of Mitsui & Co. Venture Partners II, L.P. (“Mitsui”) and Easton Capital Partners, L.P. (“Easton”) shall have the right to the terms receive notice of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, and each of Mitsui and Easton shall have the right to attend up to 50% of such meetings in any calendar year (or designate its reasonable discretionrepresentative to attend such meeting on its behalf) as a nonvoting observer and to comment for the record at any such meeting, determines involve matters provided that Mitsui and Easton (or business necessary their designated representatives) shall coordinate their schedules such that they (or their designated representatives) are not in attendance at the same meeting. Xxxxxxx & Xxxxxxx Development Corporation shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at such meeting. Subject to the fulfillment of the obligations contained in Section 5.1(a), effective as of January 1, 2008, Intersouth (as defined below) shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at any such meeting. Each observer so appointed as provided above shall sign a confidentiality agreement reasonably acceptable to the Board of Directors of the Company prior to his or her first attendance to his or her first meeting of the Board of Directors. The Company shall provide each such observer attending a meeting of the Board of Directors the materials provided to the Board of Directors with respect to such meeting at the time such materials as provided to the members of the Board of Directors. Notwithstanding anything contained herein to the contrary, no observer shall be considered by permitted to attend any meeting of any committee of the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part consent of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board majority of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's such committee. The Board of Directors, including but not limited or the members of any committee thereof, as applicable, shall have the right to copies prevent access by any or all observers to any meeting of all proposed and final resolutionsthe Board of Directors, minutes and written consents. Notwithstanding anything or committee thereof, respectively, or any portion thereof, if a majority of the directors present at such meeting deem, in their sole discretion, such action necessary to protect the contrary herein, confidential information of the Observers may opt Company or in order to terminate their Observation rights effective upon 5 business days written notice to comply with the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawprovisions of this Section 4.1(d).

Observation Rights. Pursuant to (a) For so long as H&Q Healthcare Investors or H&Q Life Sciences Investors (collectively "H&Q") hold in the terms aggregate at least 570,000 shares of this AgreementSeries C Preferred Stock and/or Series D Preferred Stock, the Observers Company shall be entitled allow one representative designated by H&Q to attend, as observers, attend all meetings of the Company's Board of Directors in a nonvoting capacity, and in connection therewith, the Company shall give such representative copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board of Directors; provided, however that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. (including telephonic meetings)b) Any time that Guidant Investment Corporation ("Guidant") is a Major Investor and has not nominated an individual serving as a director pursuant to clause (ii) of Section 1.2(c) of the Second Amended and Restated Voting Agreement by and among the Company and certain of its shareholders, the Company shall allow one representative designated by Guidant to attend all meetings of the Company's Board of Directors in a non-voting capacity, and in connection therewith, the Company shall give such representative copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board of Directors; provided, however, that (a) the Company's Board of Directors Company may require as a condition precedent to Guidant's rights under this Section 3.3(b) that the Observers, or either of them, not such representative proposing to attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% person to have access to any of the outstanding shares of information provided by the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not Company to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without shall agree in writing to hold in confidence all information so received during such meetings or otherwise; and provided further that the Observers being Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, or if delivery of such information or attendance at such meeting by such representative would result in attendance and for so long as disclosure of trade secrets to such individual is entitled representative which could directly benefit Guidant or its affiliates to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members competitive disadvantage of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.

Observation Rights. Pursuant To the extent that (i) an employee of LLR Partners, Inc. is not a member of the Board of Directors and (ii) LLR owns Equity Securities representing more than five percent (5%) of the total then outstanding Equity Securities on a fully diluted basis (excluding, for purposes of calculating LLR’s ownership percentage under this Section 3.5, any issuances of Equity Securities by the Company after the Effective Date), LLR shall have the right to the terms of this Agreement, the Observers shall be entitled designate one individual to attend, as observers, attend all meetings of the Company's Board of Directors as a non-voting observer (an “Observer”); provided that such non-voting observer shall not have the right to participate in any discussion conducted during a meeting of the Board of Directors unless such non-voting observer is explicitly recognized by the Chairman of the Board of Directors. The Observer shall be invited (in the same manner and at the same time as the member of the Board of Directors) to attend all meetings of the Board of Directors or any subsidiary of the Company (including telephonic meetings)or other electronic meetings to the extent that members of the Board of Directors are attending such meetings in such manner) and shall receive (in advance, to the extent members of Board of Directors receive such materials in advance) copies of all notices, minutes, consents, and other material that the Company provides to each of the members of the Board of Directors in connection with any meeting or consent or otherwise by reason of their membership; provided, however, that (a) the Company's Board of Directors may require that the Observerseach Observer shall hold in confidence and trust all information provided to, or either of obtained by, them. Notwithstanding the foregoing, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without shall have the Observers being right, in attendance; its sole discretion, to meet in confidential sessions and (b) to not provide access to such rights shall exist for each sessions or the information discussed in such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the sessions to any or all Observers, or either of themas applicable, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by if the Board of Directors without shall determine that such confidential session is (a) necessary to preserve an attorney-client privilege, (b) in the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members best interest of the Company's Board of DirectorsCompany and where such Observer, including but not limited or the entity it represents, has an interest in the subject matter under discussion, (c) necessary to copies of all proposed and final resolutionsdischarge the directors’ fiduciary duties, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered or (d) otherwise advised by the Corporation to be insiders or affiliates, unless required by applicable lawcounsel.

Observation Rights. Pursuant In addition to the terms rights to nominate two directors provided in Section 5.5, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this AgreementSection, the Observers term “Observation Rights” shall be entitled mean the right of Buyers or their affiliates to attend, have a representative (an “Observer”) attend as observers, an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Company's Board Boards of Directors (including telephonic meetings); provided, however, of the Company and its Subsidiaries and their respective committees at the same time that (a) notice of such meetings is given to the Company's Board directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may require that participate in a meaningful manner in discussions of matters brought to the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary and shall be permitted to be considered by pose questions and the Board of Directors without shall provide complete responses to the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% questions posed. For the avoidance of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meetingdoubt, the Board must provide Observer shall not be deemed to the Observers, at least five (5) business days prior to such be a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board member of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without or any committee of the Observers being Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attendance and for so long as attending such individual is entitled to attend Board meetings, such individuals shall be provided with meetings on the same meeting notices and materials as basis that the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consentsdirectors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observers may opt Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to terminate the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their Observation rights effective upon 5 business days affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.6, and (B) provided the Observer gives prior written notice to the Company, following which time the Observers will no longer be provided disclose such material and information in accordance with meeting notices and material. Upon electing to terminate their status as Observersapplicable laws or legal process, the Observers will in no way be considered by the Corporation to be insiders any litigation or affiliates, unless required by applicable lawother proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. Pursuant to the terms of this Agreement, the Observers shall be entitled to attend, So long as observers, all meetings any of the Company's Board of Directors (including telephonic meetings); provided, however, that Obligations remain outstanding: (a) the Company's Board Administrative Agent, acting at the direction of Directors may require that the ObserversRequired Lenders, shall have the right to, or either to appoint one representative (which may be a representative of themFTI Consulting or such other firm selected by the Administrative Agent) who shall, not (i) receive written notice of all meetings (both regular and special) of the boards of directors (or similar body) of each Loan Party and their respective Subsidiaries and each committee of any such board at the same time and in the same manner as notice is given to the members of any such board and/or committee, (ii) be entitled to attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors(or, in its reasonable discretionthe case of telephone meetings, determines involve matters or business necessary to be considered join) all such meetings, (iii) receive all notices, information and reports which are generally furnished by the Board Loan Parties or any Subsidiary to all of Directors without the Observers being members of any such board and/or committee (in attendance; their capacity as a member of such board or committee) at the same time and in the same manner as the same is furnished to such members in connection with any such meetings, and (iv) be entitled to participate in all discussions conducted at such meetings and receive copies of the minutes of all such meetings at the same time and in the same manner as all of the other members of the board; (b) if any action is proposed to be taken by any such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part board and/or committee by written consent in lieu of a Board meeting, the Board must provide Loan Parties will give written notice thereof to each such representative, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered at the same time as notice is given to the Observers, at least five members of any such board and/or committee; (5c) business days prior to the Loan Parties will furnish each such a meeting, representative with a copy of each such written explanation detailing the reasons for the exclusion; provided that the Company's Board consent not later than five days after it has been signed by its last signatory; (d) each such representative shall not constitute a member of Directors may any such board and/or committee and shall not exclude one be entitled to vote on any matters presented at meetings of any such board and/or committee or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business consent to any matter as to which the Company's Board consent of Directors has determined should any such board and/or committee shall have been requested; (e) the board of directors (or similar body) of the Company shall meet not less frequently than quarterly during each Fiscal Year at least one of which meetings must be considered in person; each designated representative electing not to attend any meeting in person may in any event be permitted to participate in such meeting by telephone as if such designated representative were present; (f) promptly upon receipt of an invoice therefor, the Board Company shall reimburse each such designated representative (or the employers of Directors such representatives) for the reasonable out-of-pocket costs and expenses of such representative in attending any meeting (other than a telephonic meeting); (g) if an issue is to be discussed or otherwise arises at any meeting of the board of directors of the Loan Parties or their Subsidiaries or any committee thereof which, in the reasonable judgment of such board of directors, cannot be discussed in the presence of such representative in order to avoid a conflict of interest on the part of such representative or to preserve an attorney-client privilege, then such issue may be discussed without the Observers such representative being present and may be deleted from any materials being distributed in attendance and for connection with any meeting at which such issues are to be discussed, so long as (x) such individual representative is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members given notice of the Company's Board occurrence of Directors, including but not limited to copies such meeting and the deletion of all proposed such materials and final resolutions, minutes (y) notice of the occurrence of such meeting and written consents. Notwithstanding anything the deletion of such materials is given to the contrary herein, Administrative Agent. 12. Section 11.16 of the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices Agreement is hereby amended and material. Upon electing to terminate their status restated in its entirety as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.follows:

Observation Rights. Pursuant So long as Platinum or its nominee is a Holder of Series A Preferred Securities: (a) Platinum shall have the right to select, at any time and from time to time, one representative (the terms of this Agreement, the Observers shall be entitled "Representative") to attend, as observers, all meetings attend and observe each meeting of the Company's Board of Directors and any other strategic planning or similar type meeting of the Board of Directors or trade shows or other similar events relating to the business of the Corporation and the Corporation shall pay or cause to be paid on behalf of the Corporation the reasonable out-of-pocket travel expenses incurred by such Representative in connection with his or her attendance at such meetings or events; (including telephonic meetings)b) The Corporation shall give Platinum (i) at least 15 days' advance notice of each regular meeting of the Board of Directors and such advance notice as is reasonable under the circumstances to enable the Representative to attend each special or emergency meeting of the Board of Directors, (ii) on or prior to the date of each meeting of the Board of Directors, all information given to the directors of the Corporation at or in connection with such meeting, and (iii) as soon as available but in any event not later than 45 days after each meeting of the Board of Directors, copies of the minutes of such meeting. In the event that the Board of Directors shall act by unanimous written consent in lieu of a meeting, the Corporation shall give Platinum and the Representative a copy of such written consent at least five business days prior to the earlier of the adoption or effective date thereof, together with all information given to the directors of the Corporation in connection with such action; provided, however, that (a) in the Company's event immediate action is required to address an emergency situation, the Corporation shall be in compliance with this sentence if the Corporation shall send Platinum and the Representative a copy of such written consent and information by telecopier at the same time as such consent and information is sent to the members of the Board of Directors may require that for their review and signature. (c) The Corporation shall comply with all provisions of its by-laws relating to meetings of the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretionincluding, determines involve matters or business necessary without limitation, those relating to be considered notice and to the time and date of meetings and action by the Board of Directors without the Observers being in attendancewritten consent; and (bd) such rights The Representative shall exist for each such individual only for so long as such individual owns at least 1.0% have the right (but not the obligation) to consult with and advise the management of the outstanding shares Corporation at any time or from time to time, by telephone or in person, on such matters relating to the operation of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials Corporation as the members of the Company's Board of DirectorsRepresentative shall deem appropriate (including, including but not limited to copies of all proposed without limitation, matters regarding capital expenditures, acquisitions and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawmanagement compensation).

Observation Rights. Pursuant to the terms of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board The Investors shall be given a copy of Directors may require that the Observers, any and ------------------- all notices or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary other written materials sent to be considered by the Board of Directors without of the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long Company at the same time as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not materials are given to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited without limitation, notices of meetings, written consents to copies be signed by members of the Board of Directors, and financial or other reports. (b) The Investors shall have the right to have one representative attend all proposed and final resolutions, minutes and meetings of the Board of Directors or any of its committees (including any adjournments thereof) either in person or by such other method as shall be allowed under the Bylaws for directors. No meeting of the Board of Directors or any committee thereof shall be conducted unless such representative of the Investors shall have been given prior written consents. Notwithstanding anything notice of such meeting at least two days prior to the contrary hereindate of such meeting. Such representative shall have the right to speak at such meetings and to make such suggestions and requests during such meetings as such representative deems appropriate, and the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to Board of Directors shall consider such suggestions and requests in good faith. Except when the attorney-client privilege would be compromised in the reasonable opinion of counsel for the Company, following which time the Observers will no longer Company hereby waives any right to exclude such representative from any such meeting or any right, whether legal, procedural, or otherwise, to conduct any such meetings in executive session or otherwise to the exclusion of such representative. Exercise of the rights granted in this subsection (b) shall not be, and shall not be provided with meeting notices and material. Upon electing deemed to terminate their status as Observersbe, participation by the Investors on the Board of Directors of the Company. (c) In addition to the foregoing, the Observers will in no way be considered by Investors shall have the Corporation right to be insiders or affiliatesreview any material consent resolutions of the Board of Directors prior to the execution thereof, unless required by applicable lawand to make such suggestions and requests with respect thereto as the Investors deem appropriate.

Observation Rights. Pursuant to The Board of Directors of Borrower shall hold its meetings on a regular basis but in any event shall meet at least quarterly. Unless the terms Obligations shall have been paid in full, then beginning with the six month anniversary of this Agreementthe Termination Date, the Observers Lenders shall be entitled have the right to attend, as observers, have one representative attend any and all meetings of the Company's Board of Directors and all of its committees (including telephonic meetings); providedany adjournments thereof) of each Credit Party either in person or by such other method as shall be allowed under the Bylaws for Directors. Notwithstanding any implication to the contrary contained herein, however, that (a) no meeting of the Company's Board of Directors may require that of any Credit Party or any committee thereof shall be conducted unless such representative of the ObserversLenders shall have been given prior written notice of such meeting at least two (2) Business Days prior to the date of such meeting. Such representative shall have the right to speak at such meetings and to make such suggestions and requests during such meetings as such representative deems appropriate, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that and the Company's applicable Board of Directors, Directors shall consider such suggestions and requests in its good faith. Except when the attorney-client privilege would be compromised in the reasonable discretion, determines involve opinion of counsel for the Credit Parties or in order to protect any confidential matters or business necessary discussed therein with respect to which the Lenders may reasonably be considered determined by the Board of Directors without to have a material and substantial conflicting interest, the Observers being Credit Parties hereby waive any right to exclude such representative from any such meeting or any right, whether legal, procedural or otherwise, to conduct any such meetings in attendance; and (b) executive session or otherwise to the exclusion of such rights shall exist for each such individual only for so long as such individual owns at least 1.0% representative. Exercise of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary rights granted in this Section 6.01(h) shall not be, and rare circumstance exists such that the Observersshall not be deemed to be, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered participation by any Lender on the Board of Directors without of the Observers being in attendance Borrower or the other Credit Parties. In addition to the foregoing, the representative of the Lenders shall have the right to review any material consent resolutions of the Board of Directors of any Credit Party or any committee thereof prior to the execution thereof, and for so long to make such suggestions and requests with respect thereto as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members representative deems appropriate on behalf of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consentsLenders. Notwithstanding anything to The Borrower will pay for the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered reasonable out-of-pocket expenses incurred by the Corporation to be insiders representative in attending Board and committee meetings or affiliates, unless required by applicable lawexercising any rights hereunder.

Observation Rights. Pursuant to the terms of this Agreement, the Observers 1.1 Masimo shall be entitled to attend, specify one individual to serve as observers, a non-voting observer (“Observer”) at all meetings of the Company's ’s Board of Directors (including telephonic meetings); provided, however, that (athe “Board”) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by and the Board of Directors (or similar body) of any subsidiary of the Company (each, a “Subsidiary Board” and, together with the Board, the “Boards”), and all committees of the Board or any Subsidiary Board, including, without limitation, any ad hoc committee of the Board or any Subsidiary Board (collectively, “Committees”). The Observer may fully participate in all discussions of matters brought to the Boards or any Committee. Masimo shall have the sole authority to replace its Observer at any time. The Company shall provide Masimo with copies of all notices, minutes, consents and other materials that the Company provides to its directors in the same manner that the directors receive such materials, except that, the Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof if the Company determines, upon the advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege or to protect highly confidential and proprietary information. Notwithstanding the foregoing, the Board and the officers of the Company shall not be required to allow Mxxxxx to participate with respect to communications involving day-to-day business activities and immaterial operational decisions, in each case that are not presented to the Board for approval. 1.2 Except as disclosure shall be required by law or disclosures to the Observer’s Affiliates, officers, directors, agents, employees, attorneys and financial advisers, each of whom are bound by confidentiality obligations, the Observer agrees to hold in confidence and trust and not use or disclose any Confidential Information (as defined below) provided to or learned by the Observer in connection with the Observer’s rights under this Agreement during the time the Observer has observation rights. For purposes of this Agreement: (a) “Confidential Information” shall include all confidential and proprietary information of the Company. Confidential Information shall not include information that (i) prior to or after the time of disclosure becomes part of the public knowledge, (ii) is received from a third party that is not bound by confidentiality restrictions, (iii) is independently developed by Mxxxxx or any of Masimo’s Affiliates without the Observers being in attendanceuse of Confidential Information, (iv) is pre-approved for release by the Company, or (v) is required to be disclosed pursuant to any applicable law, regulation, order or other similar requirement of any governmental, regulatory or supervisory authority; (b) an “Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise; and (bc) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that a “Person” means an extraordinary and rare circumstance exists such that the Observersindividual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawany other entity.

Observation Rights. Pursuant to the terms (i) Any Purchaser that holds at least $4,000,000 in principal amount of this Agreement, the Observers New Debentures (each a "Four Million Dollar Holder") shall be entitled to attendappoint 1 representative (the "New Debenture Representative" and collectively with the Aggregate Convertible Debenture Holders' Replacement Observers, the "Observers") who shall be entitled to serve as observers, an observer at all meetings of the Company's Board and each Subsidiary Board, and any committees thereof. Such right shall from time to time be exercisable by delivery to the Company of Directors written notice from each Four Million Dollar Holder specifying the name of the applicable New Debenture Representative. (including telephonic meetings); ii) Each Observer shall have all of the rights of a member of the Board and each Subsidiary Board, provided, however, that no Observer shall have the right to vote on matters on which the members of the Board or any Subsidiary Board are entitled to vote. Each of the Company and its Subsidiaries will give each Observer reasonable prior notice (ait being agreed that the same prior notice given to the Board and each Subsidiary Board shall be deemed reasonable prior notice) in any manner permitted in the Company's Board or each Subsidiary's By-laws for notices to directors of Directors may require that the Observers, or either time and place of them, not attend any particular Board proposed meeting or be excused from any portions of meetings that involve matters or business that the Company's each such Board of Directors, such notice in its reasonable discretion, determines involve matters or business necessary all cases to include true and complete copies of all documents furnished to any director in connection with such meeting. Each Observer will be entitled to be considered present in person as an observer at any such meeting or, if a meeting is held by the Board of Directors without the Observers being in attendance; and telephone conference, to participate therein. (biii) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% Each of the outstanding shares Company and its Subsidiaries will deliver to each Observer copies of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should all papers which may be asked not distributed from time to attend all or part of a Board meeting, the Board must provide time to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directorsand each Subsidiary Board at such time as such papers are so distributed to them, including but not limited to copies of all proposed any written consent. In addition, from time to time upon the request of each Observer, the Company or each Subsidiary will furnish to such Observer such information regarding the business, affairs, prospects and final resolutionsfinancial condition of the Company or each Subsidiary as such Observer may reasonably request. (iv) Each of the Company and its Subsidiaries shall pay, minutes and written consents. Notwithstanding anything to the contrary hereinor reimburse, the Observers for all travel and related expenses incurred by the Observers in connection with attending such meetings and monitoring the Purchasers' investment in the New Debentures. (v) Each Observer shall hold in confidence all nonpublic information of the Company provided or made available to such Observer pursuant to this Section 6.2(b) until such time as such information has become publicly available other than as a consequence of any breach by such Observer or any Aggregate Convertible Debenture Holder of its confidentiality obligations hereunder (provided that such information may opt be disclosed to terminate their Observation rights effective upon 5 business days any other Persons who are bound by this provision and in connection with a Purchaser's compliance with Laws in which case Purchaser will provide the Company with prompt written notice to so that it may seek a protective order or other appropriate remedy) and shall not (1) trade or otherwise directly or indirectly transfer any Securities of the Company, following which time Company in violation of the Observers will no longer be provided with meeting notices Securities Act or Exchange Act or (2) use such information for any purpose other than exercise of its rights as a holder of Securities and material. Upon electing to terminate their status as Observers, its rights under this Agreement and the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawother Financing Documents.

Observation Rights. Pursuant to From the terms date of this AgreementAgreement and until all the Notes have been fully paid and Pyxis does not have any obligation to purchase Notes from the Company, the Observers Pyxis shall be entitled to attenddesignate one individual reasonably acceptable to the Company (the "OBSERVER") who shall be entitled to notice of, as observersto attend and to receive copies of any documentation distributed to members before, during or after, all meetings (including any action to be taken by written consent) of the Board of Directors (the "BOARD") of the Company and all committees thereof; provided however, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof (so long as the Company notifies the Observer of such withholding and of any action taken by the Board as a result of such meeting) if access to such information or attendance at such meeting would, (i) in the judgment of the Company's outside counsel, adversely affect the attorney-client privilege between the Company and its counsel or cause the Board to breach its fiduciary duties, or (ii) in the good faith determination of Directors (including telephonic meetings); provideda majority of the Board, however, that result in a conflict of interest with the Company due to the Observer's and Pyxis's relationships with their Affiliates. The Observer shall not be (a) permitted to vote at any meeting of the Company's Board of Directors may require that the ObserversBoard, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights counted for purposes of determining whether there is sufficient quorum for the Board to conduct its business. The parties acknowledge and agree that notwithstanding contrary authority, if any, the Observer shall exist for each such individual only for so long as such individual owns at least 1.0% owe no fiduciary or other duties to the stockholders of the outstanding shares of Company or otherwise have any directorial or other duties or liabilities to the Company's Common StockCompany or its stockholders. Should the Company's Board of Directors determine that an extraordinary Pyxis shall designate, and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meetingmay replace, the Board must provide Observer with or without cause in its sole discretion by providing written notice to the Observers, Company at least five (5) business days prior to any such action taking effect. The Company acknowledges that Pyxis will likely have, from time to time, information that may be of interest to the Company ("INFORMATION") regarding a meetingwide variety of matters including, with a written explanation detailing the reasons for the exclusion; provided that the Companyexample, (1) Pyxis's Board technologies, plans and services, and strategies relating thereto, (2) current and future investments Pyxis has made, may make, may consider or may become aware of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which other companies and other technologies, products and services that may be competitive with the Company's Board 's, and (3) developments with respect to the technologies, products and services, and plans and strategies relating thereto, of Directors has determined should other companies, including, without limitation, companies that may be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided competitive with the same meeting notices and materials as the members Company. The Company recognizes that a portion of the Company's Board such Information may be of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice interest to the Company, following which time the Observers will no longer . Such Information may or may not be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered known by the Corporation Observer. The Company, as a material part of the consideration for this Agreement, agrees that Pyxis and its Observer shall have no duty to disclose any Information to the Company or permit the Company to participate in any projects or investments based on any Information, or to otherwise take advantage of any opportunity that may be insiders of interest to the Company if it were aware of such Information, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or affiliates, unless required by applicable lawotherwise that could limit Pyxis's ability to pursue opportunities based on such Information or that would require Pyxis or the Observer to disclose any such Information to the Company or offer any opportunity relating thereto to the Company.

Observation Rights. Pursuant So long as MPM Capital (or any successor ------------------ thereto) ("MPM") (or entities affiliated with MPM) owns shares of Series H Convertible Preferred Stock, MPM shall have the right to the terms of this Agreement, the Observers shall be entitled designate one observer to attend, as observers, all attend meetings of the Company's Board of Directors (including telephonic meetingssuch designee, an "Observer"); provided, however, that (a) . The Observer shall not have the Company's Board of Directors may require that right to vote on any matter presented to the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by . The Company shall give the Observer written notice of each meeting of the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices time and materials in the same manner as the members of the Company's Board of Directors receive notice of such meetings, and the Company shall permit the Observer to attend as an observer all meetings of its Board of Directors. The Observer shall be entitled to receive all written materials and other information given to the directors in connection with such meetings at the same time such materials and information are given to the directors, and the Observer shall keep such materials and information confidential. If the Company proposes to take any action by written consent in lieu of a meeting of its Board of Directors, including but not limited the Company shall give written notice thereof to copies the Observer prior to the effective date of such consent. The Company shall provide the Observer all proposed written materials and final resolutionsother information given to the directors in connection with such action by written consent at the same time such materials and information are given to the directors, minutes and written consentsthe Observer shall keep such materials and information confidential. Notwithstanding anything the foregoing, the Company reserves the right not to provide information and to exclude the Observer from any meeting or portion thereof if the Company believes, as determined in good faith by its Board of Directors, that delivery of such information or attendance at such meeting by the Observer (a) would adversely affect the attorney-client privilege between the Company and its counsel, (b) would violate any fiduciary obligations of the Board of Directors, or (c) would involve a conflict of interest with regard to the contrary hereinObserver, or if the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to Observer is a direct competitor of the Company. The rights of MPM pursuant to this Section 5.18 shall terminate on the earlier to occur of (i) twelve months after the consummation of an Initial Public Offering, following which time or (ii) the Observers will no longer be provided acquisition (whether by merger or otherwise) of substantially all of the stock or assets of the Company by any entity unaffiliated with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawCompany.

Observation Rights. Pursuant The Company shall permit one (1) representative of Falcon Mezzanine Partners II, LP (together with FMP II Co-Investment, LLC, each of their respective Affiliates and Approved Funds, “Falcon”) and one (1) representative of JZ Equity Partners PLC (together with its Affiliates and Approved Funds, “JZEP”) to attend and participate in all meetings of the terms Governing Bodies of this Agreementthe Company and its Subsidiaries and all committees thereof (the “Observers”) provided, however, if as of any date of determination, either Falcon and/or JZEP shall no longer be the holder of at least 25.0% of the original principal amount of the Notes, held by such party as of the Closing Date then, the Observers holders comprising a Majority Interest at such time shall be entitled to attendappoint from time to time a replacement Observer, which shall be reasonably acceptable to the Company; provided, further, that, the right to appoint Observers shall terminate upon the payment in full of the Obligations. The Company shall (i) give the Purchasers notice of all such meetings, at the same time as observersfurnished to the members or the Governing Bodies of any of the Company and its Subsidiaries (ii) pay the reasonable out-of-pocket costs and expenses of the Observers in connection with his attendance at such meetings or other activities, and indemnify the Observers to the fullest extent permitted by law in connection therewith, (iii) provide to the Observers all notices, documents and information furnished to the Governing Bodies of the Company and its Subsidiaries whether at or in anticipation of a meeting, an action by written consents or otherwise, at the same time furnished to such Governing Bodies, (iv) notify the Observers and permit the Observers to participate, on a non-voting basis, by telephone in, emergency meetings of such Governing Bodies and all committees thereof, (v) provide the Observers copies of the minutes of all such meetings at the time such minutes are furnished to the Governing Bodies of the Company or any of its Subsidiaries, and (vi) cause regularly-scheduled meetings of the Governing Bodies of the Company to be held no less frequently than quarterly, with at least one (1) meeting per year held in person. Subject to the foregoing, all such meetings can be held either in person or by conference call, at the option of the Company's Board . The Company shall have the right to exclude the Observers from (i) any portion of Directors a meeting of the Governing Body and/or (including telephonic meetings)ii) the distribution of a certain portion of the documentation provided to the members of the Governing Body in connection with such meeting, if the presence of such Observers or the receipt of such materials would, in the reasonable opinion of outside counsel, result in the loss of attorney-client privilege to the Company with respect to such portion of the meeting or documents; provided, however, that (a) upon and following the Company's Board occurrence of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meetingexclusion, the Board must provide to holders comprising a Majority Interest at such time shall have the Observersright, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time to nominate and have appointed to the Governing Body one or more representatives (in the same aggregate number and otherwise in accordance with the provisions, and subject to the limitations, as the appointment of Observers will no longer be provided with meeting notices set forth above) of their choice, and material. Upon electing the Company shall take, all such action under its Articles of Incorporation, by-laws and other organizational documents necessary to terminate their status as Observerseffect the appointment and election of such individuals to the Governing Body, and the Observers will in no way be considered by the Corporation Parent agrees to be insiders or affiliates, unless required by applicable law.vote all of its Capital Stock having voting power (and any other Capital Stock over

Observation Rights. Pursuant (a) The board of directors of the Borrower (the "Board") shall hold a general meeting (which may be held by conference call) or propose adoption of resolutions by written consent of the board of directors at least quarterly for the purpose of discussing the business and operations of the Borrower and its Subsidiaries. The Borrower shall notify Allied Capital or another representative of the Holders (the "Representative") in writing of the date and time for each general or special meeting of the Board or any executive committee thereof or of the adoption of any resolutions by written consent (describing in reasonable detail the nature and substance of such action) at least one week prior to any general meeting for which notice is not required to be provided and at the time notice is provided to the terms directors of this Agreementthe Borrower of any other general meeting or any special meeting and concurrently deliver to the Representative any materials delivered to directors of the Borrower, the Observers including a draft of any resolutions proposed to be adopted by written consent. The Representative shall be entitled free during such one week period to attend, as observers, contact the directors of the Borrower and discuss the pending actions to be taken. (b) The Borrower shall permit one authorized representative of Allied Capital and its successors (the "Board Participant") to attend and participate in all meetings of the Company's Board and any executive committee thereof, whether in person, by telephone or otherwise, and shall provide such representative with such notice and other information with respect to such meetings as are delivered to the directors of Directors (including telephonic meetings); the Borrower, provided, however, that (a) the CompanyBorrower's Board Chief Executive Officer or President or a majority of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without shall have the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's right to exclude Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend Participant from all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which of the Board will address either stockholder or compensation matters. Except omit to provide Board Participant or the Holder with certain information if the President or Chief Executive or such members of the Board believes in good faith that such exclusion or omission is necessary in order to (i) preserve the attorney-client privilege, or (ii) fulfill the Borrower's obligations with respect to matters confidential or business as to which the Company's Board proprietary information of Directors has determined should be considered by third parties (provided however, that the Board Participant shall not be so excluded unless all other persons whose receipt of Directors such materials or presence at a meeting would result in a violation of such third party confidentiality are also excluded). In addition, a majority of the Borrower's directors on the Board shall have the right to exclude the Board Participant from all or portions of meetings of the Board or omit to provide Board Participant or any Holder with certain information if such meeting or information involves information or analysis which would pose a material conflict of interest for Borrower and such Holder. No more than one time per year, the Borrower shall pay such representative's reasonable travel expenses (including, without limitation, the Observers being cost of airfare, meals and lodging) in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided connection with the same meeting notices and materials as the members attendance of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawsuch meetings.

Observation Rights. Pursuant So long as Platinum or its nominee is a Holder of Series A Preferred Securities: (a) Platinum shall have the right to select, at any time and from time to time, one representative (the terms of this Agreement, the Observers shall be entitled "Representative") to attend, as observers, all meetings attend and observe each meeting of the Company's Board of Directors and any other strategic planning or similar type meeting of the Board of Directors or trade shows or other similar events relating to the business of the Corporation and the Corporation shall pay or cause to be paid on behalf of the Corporation the reasonable out-of-pocket travel expenses incurred by such Representative in connection with his or her attendance at such meetings or events; (including telephonic meetings)b) The Corporation shall give Platinum (i) at least 15 days' advance notice of each regular meeting of the Board of Directors and such advance notice as is reasonable under the circumstances to enable the Representative to attend each special or emergency meeting of the Board of Directors, (ii) on or prior to the date of each meeting of the Board of Directors, all information given to the directors of the Corporation at or in connection with such meeting, and (iii) as soon as available but in any event not later than 45 days after each meeting of the Board of Directors, copies of the minutes of such meeting. In the event that the Board of Directors shall act by unanimous written consent in lieu of a meeting, the Corporation shall give Platinum and the Representative a copy of such written consent at least five business days prior to the earlier of the adoption or effective date thereof, together with all information given to the directors of the Corporation in connection with such action; provided, however, that (a) in the Company's event immediate action is required to address an emergency situation, the Corporation shall be in compliance with this sentence if the Corporation shall send Platinum and the Representative a copy of such written consent and information by telecopier at the same time as such consent and information is sent to the members of the Board of Directors may require that for their review and signature. (c) The Corporation shall comply with all provisions of its by-laws relating to meetings of the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretionincluding, determines involve matters or business necessary without limitation, those relating to be considered notice and to the time and date of meetings and action by written consent; and (d) The Representative shall have the Board of Directors without right (but not the Observers being in attendance; obligation) to consult with and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% advise the management of the outstanding shares Corporation at any time or from time to time, by telephone or in person, on such matters relating to the operation of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials Corporation as the members of the Company's Board of DirectorsRepresentative shall deem appropriate (including, including but not limited to copies of all proposed without limitation, matters regarding capital expenditures, acquisitions and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawmanagement compensation).