Common use of Observer Rights Clause in Contracts

Observer Rights. As long as the DLB Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares it purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the DLB Investor to attend all regular meetings of the Company’s board of advisors (the “Advisory Board”) in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; provided, however, that, in each case such representatives shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that, in each case, the Company reserves the right to withhold any information and to exclude such representatives from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the DLB Investor, the Broadline Investor or their representatives are competitors of the Company.

Observer Rights. As long as the DLB Investor or any of its Affiliates owns "Series D Investors" collectively own not less than twenty-five percent (25%) 727,500 shares of Series D Preferred Stock of the Series B Preferred Shares it purchased under the Series B Share Purchase Agreement Company (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative designated by the holders of a majority of the DLB Investor Registrable Securities held by such Series D Investors to attend all regular meetings of the Company’s board its Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in this respect, (it being understood and the Company hereby agrees that such representative shall give alternate between a representative of Hancxxx Xxxture Partners IV - Direct Fund L.P. and a representative of Pioneer Ventures Limited Partnership as such representatives copies of all materials that it provides entities may from time to its advisors on such Advisory Board; and as time determine). As long as the Broadline Investor or any of its Affiliates MeriTech collectively owns not less than twenty-five percent (25%) 333,334 shares of Series F Preferred Stock of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement Company (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor designated by MeriTech to attend all regular meetings of the Company’s Advisory its Board of Directors in an a nonvoting observer capacity and, in this respect, capacity. The Company shall give such representatives provide to each representative copies of all notices, minutes, consents, and other materials that it provides to its advisors on such Advisory Boarddirectors; provided, however, that, in that each case such representatives representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and and, provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives a representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or would result in disclosure of trade secrets or a conflict of interest, or to such representative if the DLB Investor, the Broadline such Investor or their representatives are competitors its representative is a direct competitor of the Company.

Observer Rights. As long as any shares of the DLB Investor Series A Preferred Stock, the Series A-1 Preferred Stock, or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares it purchased under are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, and the Series B Share Purchase Agreement Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (or an equivalent amount of Common Shares issued upon conversion thereof), 1) representative thereof who shall be invited by the Company shall invite a representative of the DLB Investor to attend all regular meetings of the Company’s board of advisors (the “Advisory Board”) Board in an a nonvoting observer capacity and, in this respect, shall give such representatives be given copies of all notices, minutes, consents, and other materials that it the Company provides to its advisors on the Board, such Advisory Board; and materials to be made available to such representative at or about the time as long as such materials are provided to the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; provided, however, that, in each case that such representatives representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided; and provided , further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives representative from any meeting or portion thereof if the Board has determined that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in a conflict of interest or disclosure of trade secrets or a conflict secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of interestshares of the Series A Preferred Stock, or the Series A-1 Preferred Stock, and/or the Series B Preferred if the DLB Investor, the Broadline Investor or their representatives are competitors of the CompanyBoard has determined that such holder is a Competitor.

Observer Rights. As For so long as at least 1,750,000 shares of Series A-2 Preferred Stock remain outstanding, the DLB Investor or any Company shall allow one representative of its Affiliates the holders of a majority of Series A-2 Preferred Stock to attend all meetings of the Board in a nonvoting observer capacity, which representative shall initially be Xxxxx Xxxxxx. In addition, the Company shall allow one representative of Altitude Life Science Ventures Fund II, L.P. and Altitude Life Science Ventures Side Fund II, L.P. (collectively, “Altitude”), for so long as Altitude owns not less than twenty-five twenty percent (2520%) of the shares of the Series B A-1 Preferred Shares Stock it purchased is purchasing under the Series B Share Purchase Agreement and does not have one (or an equivalent amount of Common Shares issued upon conversion thereof)1) Affiliate then serving on the Board, the Company shall invite a representative of the DLB Investor to attend all regular meetings of the Company’s board of advisors (Board in a nonvoting observer capacity. Each observer appointed pursuant to this Agreement or pursuant to any management rights letter or other agreement issued or entered into by the Company on or about the date hereof, are referred to herein as an “Observer”, and collectively, the “Advisory BoardObservers”) in an observer capacity and, in this respect, . The Company shall give such representatives the Observers copies of all notices, minutes, consents, and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; provided, however, that, in each case such representatives directors. Observers shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that, in each case, the . The Company reserves the right to withhold any information and to exclude such representatives an Observer from any meeting or portion thereof if reasonably determined that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the DLB Investor, the Broadline such Investor or their representatives are competitors its representative is a Competitor of the Company.

Observer Rights. As For so long as the DLB Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares it purchased under the Series B Share Purchase Agreement (or Gxxxxx Xxxxxxx is an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the DLB Investor to attend all regular meetings employee of the Company’s board , Mx. Xxxxxxx shall be entitled to attend each meeting of advisors the Board in a nonvoting, observer capacity. For so long as they hold shares of Common Stock or Preferred Stock, each of Buffalo and Erie County Industrial Land Development Corporation (“BECILDC”), Rand Capital SBIC, L.P. (“Rand”), Access Technology Capital, LLC (“Access”) and Mitsui Incubase Corporation (“Mitsui”) shall be entitled to designate one (1) representative (the “Advisory BoardBECILDC Observer”, the “Rand Observer”, the “Access Observer” and the “Mitsui Observer”, respectively, and together with Mx. Xxxxxxx, the “Observers”) to attend each meeting of the Board in an a nonvoting, observer capacity and, capacity. The Company shall send to the Observers the notice of the time and place of such meeting in this respect, the same manner and at the same time as it shall give send such representatives notice to the Board. The Company shall also provide the Observers with copies of all materials that it provides reports, minutes and consents at the time and in the manner as they are provided to its advisors on such Advisory Board; the Board and the Observers shall have access to the same information as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) members of the Series B Preferred Shares Broadline Investor purchased under Board, provided that the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company Observers shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; provided, however, that, in each case such representatives shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so providedprovided to, or obtained by, him or her pursuant to this Section 4; and provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives any or all of the Observers from any meeting or portion thereof if (i) access to such information or attendance at such meeting (A) could adversely affect the attorney-client privilege between the Company and its counsel or (B) would result in disclosure of trade secrets to any of the Observers or (ii) any of the Observers is a conflict of interest, or if the DLB Investor, the Broadline Investor or their representatives are competitors of direct competitor to the Company.

Observer Rights. As long as each of (a) Asia Ventures III L.P. and F-Prime Capital Partners Healthcare Fund IV LP (collectively, “Fidelity”) together with its Affiliates, (b) BC dcyto Limited (“3E-Bio”) together with its Affiliates (which shall include Bencao 3E Bioventures Limited provided that Bencao 3E Bioventures Limited holds any shares of the DLB Investor or any of Series B Preferred Stock), (c) Orbimed together with its Affiliates, and (d) LYFE Mount Hood Limited (“LYFE”) together with its Affiliates owns not less than twenty-five percent (25%) 1,000,000 shares of the Series B Preferred Shares it purchased under the Series B Share Purchase Agreement (Stock or an equivalent amount number of shares of Common Shares Stock issued upon conversion thereofthereof (subject to appropriate adjustment for stock splits, stock dividends, combinations, and other recapitalizations), the Company shall invite a representative of the DLB Investor Fidelity, a representative of 3E-Bio, a representative of Orbimed and a representative of LYFE to attend all regular meetings of the Company’s board its Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives copies of all notices, minutes, consents, and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case that such representatives shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the DLB Investor, the Broadline such Investor or their representatives are competitors of the Companyits representative is a Competitor.

Observer Rights. As long as the DLB Investor or any of Accel Europe, L.P. (“Accel”), together with its Affiliates affiliates, owns not less than twenty-five at least ten percent (2510%) of the Series B Preferred Shares it purchased under outstanding shares of the Series B Share Purchase Agreement A Preferred Stock (or an equivalent amount of Common Shares Stock issued upon conversion thereof) owned by Accel immediately following the Closing (as defined in the Series A Agreement) (as adjusted for stock splits, stock dividends, recapitalizations or the like) and Jerusalem Venture Partners, L.P. (“JVP”), together with its affiliates, owns at least ten percent (10%) of the outstanding shares of Series A Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) owned by JVP immediately following the Closing, and Svenska Industrifonden (“Industrifonden”) owns at least ten percent (10%) of the outstanding shares of Series AA Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (as adjusted for stock splits, stock dividends, recapitalizations or the like), the Company shall invite a representative of the DLB Investor each of Accel, JVP and Industrifonden to attend all regular meetings of the Company’s board its Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives representative copies of all notices, minutes, consents and other materials that it provides to its advisors on such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case that such representatives representative shall agree in writing to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and and, provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or would result in disclosure of trade secrets or a conflict of interest, to such representative or if the DLB Investor, the Broadline such Investor or their representatives are competitors its representative is or is affiliated with a direct competitor of the Company.

Observer Rights. (i) As long as the DLB Investor or any of its Affiliates Piedmont Capital Partners, LLC owns not less than twenty-five percent (25%) of the shares of the Series B A Preferred Shares Stock it purchased under the Series B Share A Purchase Agreement (or an equivalent amount of Common Shares Stock issued upon conversion thereof), and (ii) as long as Barer & Son Capital, LLC owns not less than twenty-five percent (25%) of the shares of the Series A Preferred Stock it purchased under the Series A Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative two representatives of the DLB Investor each of Piedmont Capital Partners, LLC and Barer & Son Capital, LLC, respectively, to attend all regular meetings of the Company’s board its Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives copies of all notices, minutes, consents, and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case that such representatives shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the DLB Investor, the Broadline such Investor or their representatives are competitors its representative is a competitor of the Company.

Observer Rights. As long as Integral Capital Partners and its affiliated funds (i) own in the DLB Investor or any of its Affiliates owns aggregate not less than twenty-five percent (25%) 1,216,543 of the Series B shares of the Preferred Shares Stock it has purchased under as of the Series B Share Purchase Agreement date hereof (or an equivalent amount of Common Shares Stock issued upon conversion thereof), and (ii) are not entitled to designate a number of the Company’s Board of Directors pursuant to that certain Second Amended and Restated Voting Agreement dated as of the date hereof by and among the Company and certain of its stockholders, as the same may be amended and restated from time to time (the “Voting Agreement”), the Company shall invite a representative of the DLB Investor Integral Capital Partners to attend all regular meetings of the Company’s board its Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives representative copies of all notices, minutes, consents, and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; and as directors. As long as TCEE and its affiliated funds (i) own in the Broadline Investor or any of its Affiliates owns aggregate not less than twenty-five percent (25%) 2,161,379 shares of the Series B Preferred Shares Broadline Investor Stock it has purchased under as of the Series B Share Purchase Agreement date hereof (or an equivalent amount of Common Shares Stock issued upon conversion thereof), and (ii) are not entitled to designate a member of the Company’s Board of Directors pursuant to the Voting Agreement, the Company shall invite a representative of the Broadline Investor TCEE to attend all regular meetings of the Company’s Advisory its Board of Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives representative copies of all notices, minutes, consents, and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; provided, however, that, in each case such directors. Each of the foregoing representatives shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided furtherpursuant this Section 3.3, that, in each caseand, the Company reserves the right to withhold any information and to exclude such representatives from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result to protect information the Company reasonably deems in disclosure of good faith to be a trade secrets secret or a conflict of interest, or if the DLB Investor, the Broadline Investor or their representatives are competitors of the Companysimilar confidential information.

Observer Rights. As long as the DLB Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares it purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the The Company shall invite a one representative of the DLB Investor each of Braemar Energy Ventures II, LP (“Braemar”), Lightspeed Venture Partners (“Lightspeed”) and The Roda Group (“Roda”) to attend all regular meetings of the Company’s board its Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives representative copies of all notices, minutes, consents, and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case that such representatives representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives representative from any meeting or portion thereof if the Company in good faith believes that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or counsel, result in disclosure of trade secrets or a conflict of interest, or if the DLB Investor, the Broadline that such Investor or their representatives are competitors its representative is a competitor of the Company. Without limiting the generality of the foregoing, no representative under this Section 3.5 may disclose to any person (including a partner, member or shareholder of Braemar, Lightspeed or Roda, as the case may be) who is either a board member or board observer of a competitor of the Company (as determined by the Company) any proprietary or confidential information provided by the Company to such representative. In addition, no representative under this Section 3.5 may be a board member or board observer of a competitor of the Company. Notwithstanding the provisions of Section 3.6, the Company’s obligation to any Holder pursuant to this Section 3.5 shall terminate upon the earlier of (i) the date of the closing of the Qualified IPO and (ii) the date on which such Holder no longer holds at least fifty percent (50%) of the shares of Preferred Stock or Common Stock issued upon conversion thereof held by such Holder as of the last Closing under the Purchase Agreement.

Observer Rights. As long as the DLB Investor or any affiliates of its Affiliates owns Softbank own not less than twenty-five fifty percent (2550%) of the Series B Preferred Shares it purchased under shares of the Series B Share Purchase Agreement D Preferred it is purchasing on an even date herewith (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative of the DLB Investor Softbank to attend all regular meetings of the Company’s board of advisors (the “Advisory Board”) in be an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; and as Observer As long as the Broadline Investor or any of its Affiliates funds affiliated with Sequoia Capital ("Sequoia") owns not less than twenty-five fifty percent (2550%) of the Series B Preferred Shares Broadline Investor purchased under shares of the Series B Share Purchase Agreement D Preferred it is purchasing on an even date herewith (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative of Sequoia to be an Observer. As long as any funds affiliated with Technology Partners ("Technology Partners") owns not less than fifty percent (50%) of the Broadline Investor shares of the Series C Preferred Stock it purchased on December 18, 1997 (or an equivalent amount of Common Stock or Series C-1 Preferred Stock issued upon conversion thereof), the Company shall invite a representative of Technology Partners to be an Observer. For purposes of this Agreement, an Observer shall attend all regular meetings of the Company’s Advisory its Board of Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives be given copies of all notices, minutes, consents, and other materials that it the Company provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case such representatives that the Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and and, provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives the Observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or would result in disclosure of trade secrets to the Observer or a conflict of interestif Softbank, Sequoia or Technology Partners, or if the DLB Investor, the Broadline Investor or their representatives are competitors Observer is a direct competitor of the Company.

Observer Rights. As long as the DLB Investor or any affiliates of its Affiliates owns Softbank own not less than twenty-five fifty percent (2550%) of the shares of the Series B D Preferred Shares it purchased under the Series B Share Purchase Agreement on September 4, 1998 (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative of the DLB Investor Softbank to attend all regular meetings of the Company’s board of advisors (the “Advisory Board”) in be an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Board; and as Observer As long as the Broadline Investor or any of its Affiliates funds affiliated with Sequoia Capital ("Sequoia") owns not less than twenty-five fifty percent (2550%) of the Series B Preferred Shares Broadline Investor purchased under shares of the Series B Share Purchase Agreement D Preferred it purchased on September 4, 1998 (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative of Sequoia to be an Observer. As long as any funds affiliated with Technology Partners ("Technology Partners") owns not less than fifty percent (50%) of the Broadline Investor shares of the Series C Preferred Stock it purchased on December 18, 1997 (or an equivalent amount of Common Stock or Series C-1 Preferred Stock issued upon conversion thereof), the Company shall invite a representative of Technology Partners to be an Observer. For purposes of this Agreement, an Observer shall attend all regular meetings of the Company’s Advisory its Board of Directors in an a nonvoting observer capacity and, in this respect, shall give such representatives be given copies of all notices, minutes, consents, and other materials that it the Company provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case such representatives that the Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and and, provided further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives the Observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or would result in disclosure of trade secrets to the Observer or a conflict of interestif Softbank, Sequoia or Technology Partners, or if the DLB Investor, the Broadline Investor or their representatives are competitors Observer is a direct competitor of the Company.

Observer Rights. As long as Atlas owns not less than fifty percent (50%) of the DLB Investor or any shares of Series Seed 3 Preferred Stock it holds as of the date hereof, the Company shall invite a representative of Atlas to attend all meetings of its Affiliates Board of Directors in a nonvoting observer capacity. As long as NEA owns not less than fifty percent (50%) of the shares of Series Seed 3 Preferred Stock it holds as of the date hereof, the Company shall invite a representative of NEA to attend all meetings of its Board of Directors in a nonvoting observer capacity. As long as MPH holds at least 50% of the shares of Series A Preferred Stock purchased by it under that certain Series A Preferred Stock Purchase Agreement, the Company shall invite a representative of MPH to attend all meetings of its Board of Directors in a nonvoting observer capacity. As long as Surveyor owns not less than twenty-five percent (25%) of the Series B Preferred Shares it purchased under shares of the Series B Share Purchase Agreement A Preferred Stock it holds as of the date hereof (or an equivalent amount of Common Shares Stock issued upon conversion thereof), the Company shall invite a representative of the DLB Investor Surveyor to attend all regular meetings of the Company’s board Board of advisors (the “Advisory Board”) Directors in an a nonvoting observer capacity and, in capacity. In this respect, the Company shall give such representatives copies of all notices, minutes, consents and other materials that it provides to its advisors on directors at the same time and in the same manner as provided to such Advisory Board; and as long as the Broadline Investor or any of its Affiliates owns not less than twenty-five percent (25%) of the Series B Preferred Shares Broadline Investor purchased under the Series B Share Purchase Agreement (or an equivalent amount of Common Shares issued upon conversion thereof), the Company shall invite a representative of the Broadline Investor to attend all regular meetings of the Company’s Advisory Board in an observer capacity and, in this respect, shall give such representatives copies of all materials that it provides to its advisors on such Advisory Boarddirectors; provided, however, that, in each case that such representatives representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided provided, further, that, in each case, that the Company reserves the right to withhold any information and to exclude such representatives representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the DLB Investor, the Broadline such Investor or their representatives are competitors its representative is a Competitor of the Company.