Common use of Observers Clause in Contracts

Observers. (a) Prior to an IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "FS Observers") at all regular and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPOFor so long as Sequoia or any of its Affiliates holds any Preferred Shares or Ordinary Shares issued upon conversion of Preferred Shares, the FS Entities, collectively, Sequoia shall be entitled to have two observers in addition appoint one observer to the FS Director (the "FS Observers") at attend all regular and special meetings of the Board for and all subcommittees of the Board, in a non-voting observer capacity (the “Sequoia Observer”). For so long as the FS EntitiesGreenwoods or any of its Affiliates holds any Preferred Shares or Ordinary Shares issued upon conversion of Preferred Shares, collectively, beneficially own Common Stock representing at least 7.5% Greenwoods shall be entitled to appoint one observer to attend all meetings of the outstanding Common Stock. Board and all subcommittees of the Board, in a non-voting observer capacity (b) Prior to an IPO and solely for the “Greenwoods Observer”). For so long as needed by DLJDST or any of its Affiliates holds any Preferred Shares or Ordinary Shares issued upon conversion of Preferred Shares, DST shall be entitled to appoint one observer to attend all meetings of the Board and all subcommittees of the Board, in a non-voting observer capacity (the “DST Observer”). For so long as Walmart or any of its Affiliates holds any Preferred Shares or Ordinary Shares issued upon conversion of Preferred Shares, Walmart shall be entitled to appoint one observer to attend all meetings of the advice Board and all subcommittees of counselthe Board, in a non-voting observer capacity (the “Walmart Observer”). For so long as JD or any of its Affiliates holds any Preferred Shares or Ordinary Shares, JD shall be entitled to maintain its qualification as appoint one observer to attend all meetings of the Board and all subcommittees of the Board, in a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3non-voting observer capacity (the “JD Observer,” together with the Sequoia Observer, the DLJ InvestorsGreenwoods Observer, the DST Observer and the Walmart Observer, the “Observers”). The Company shall give the Observers copies of all notices, minutes, consents, and other materials that the Company provides to any of the Company’s directors or any members of subcommittees of the Board at the same time and in the same manner as provided to such directors or such members of subcommittees of the Board; provided, however, that the Observers shall agree to hold in confidence all information so provided. Notwithstanding the foregoing, any Observer may be excluded from access to any material or meeting or portion thereof by vote of a majority of the outstanding Restricted Securities held by Board if the DLJ InvestorsCompany 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. The Observers shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at be reimbursed for all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for reasonable out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder expenses incurred in connection with attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter board or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawcommittee meetings. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. ‌ (a) Prior to an IPO, the FS Entities, collectively, The Investors shall be entitled to have two appoint Board observers in addition as follows: (i) Gotham is irrevocably and unconditionally (subject to the FS Director terms hereof) granted the right to appoint two non-voting observers designated by Gotham to the Board (the "FS “Gotham Observers"”), provided that the total number of Gotham Observers, together with the observers appointed by the Collateral Agent (as defined under the A&R DPA) at all regular pursuant to the A&R DPA, shall not exceed two; and‌ (ii) the holders of New Unsecured Notes (excluding Gotham) are irrevocably and special meetings of unconditionally (subject to the terms hereof) granted the collective right to appoint one non-voting observer to the Board for so long as (the FS Entities“Unsecured Observer”, collectivelyand together with the Gotham Observers, beneficially own Common Stock representing at least 7.5% the “Observers” and each is an “Observer”), provided that the total number of Unsecured Observers, together with the outstanding Common Stockobservers appointed by the holders of New Unsecured Notes pursuant to the Unsecured Debenture Agreement, shall not exceed one. (b) Prior The Observers shall be appointed upon written notice to an IPO the Corporation and solely for so long as needed by DLJthe other Investors, and upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, execution by the DLJ Investors, by vote Observer of a majority customary board observer agreement with the Corporation. The initial Observers have executed board observer agreements that continue to be effective as of the outstanding Restricted Securities held by Effective Date.‌ (c) The Observers shall be provided with notice of, and relevant materials to be considered at, all meetings of the DLJ Investors, Board (and all committees thereof) and shall be entitled to have one observer attend and participate (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers"other than voting) at in all regular and special meetings of the Board for so long as (and all committees thereof); provided, however, that the DLJ InvestorsObservers will be subject to the same obligations of confidentiality and disclosure of material conflicts, collectively, beneficially own (i) Restricted Securities representing at least 1.0% and the same prohibitions on the appropriation of corporate opportunities to which all of the outstanding Common Stock or (ii) a majority Board members are subject. The Observers may participate in principal amount the discussions of matters brought to the Notes. (c) Prior to an IPOBoard, CalPERS provided that the Observers shall have no voting rights. The Observers shall also be entitled to have one observer (the "CalPERS Observer") at all regular same indemnification, insurance and special meetings other protections to which the other members of the Board are entitled, including as described in Section 3.14 hereof. The Corporation shall reimburse each Observer for so long the reasonable out-of-pocket expenses incurred by such Observer in connection with satisfying his or her role as CalPERS or its Affiliates beneficially own Observer, up to a maximum amount of $25,000 in any shares of Common Stock12-month period, unless otherwise agreed in writing between the Corporation and an Observer. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings Gotham and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting holders of the Company. Each New Unsecured Notes may replace their respective Observers, or any one Observer, with a different Observer shall be entitled at any time in their sole discretion by providing written notice thereof to receive the same notice of any such meeting as any director, Corporation and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken other Investors in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawSection 3.12(b). (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "“FS Observers"”) at all regular and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "“Venture Capital Operating Company" ” pursuant to Section 29 C.F.R. ss. § 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "“DLJ Observer"”, and together with the FS Observers and the CalPERS Observer referred to below, the "“Observers"”) at all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "“CalPERS Observer"”) at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if anyany , relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) With respect to each committee of the Board for which BLUM XXXX or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM XXXX or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM XXXX or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM XXXX agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, the FS Entities, collectively, The Investors shall be entitled to have two appoint Board observers in addition as follows: (i) Gotham is irrevocably and unconditionally (subject to the FS Director terms hereof) granted the right to appoint two non-voting observers designated by Gotham to the Board (the "FS “Gotham Observers"”), provided that the total number of Gotham Observers, together with the observers appointed by the Collateral Agent (as defined under the A&R DPA) at all regular pursuant to the A&R DPA, shall not exceed two; and (ii) the holders of New Unsecured Notes (excluding Gotham) are irrevocably and special meetings of unconditionally (subject to the terms hereof) granted the collective right to appoint one non-voting observer to the Board for so long as (the FS Entities“Unsecured Observer”, collectivelyand together with the Gotham Observers, beneficially own Common Stock representing at least 7.5% the “Observers” and each is an “Observer”), provided that the total number of Unsecured Observers, together with the outstanding Common Stockobservers appointed by the holders of New Unsecured Notes pursuant to the Unsecured Debenture Agreement, shall not exceed one. (b) Prior The Observers shall be appointed upon written notice to an IPO the Corporation and solely for so long as needed by DLJthe other Investors, and upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, execution by the DLJ Investors, by vote Observer of a majority customary board observer agreement with the Corporation. The initial Observers have executed board observer agreements that continue to be effective as of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the NotesEffective Date. (c) Prior The Observers shall be provided with notice of, and relevant materials to an IPObe considered at, CalPERS all meetings of the Board (and all committees thereof) and shall be entitled to have one observer attend and participate (the "CalPERS Observer"other than voting) at in all regular and special meetings of the Board (and all committees thereof); provided, however, that the Observers will be subject to the same obligations of confidentiality and disclosure of material conflicts, and the same prohibitions on the appropriation of corporate opportunities to which all of the Board members are subject. The Observers may participate in the discussions of matters brought to the Board, provided that the Observers shall have no voting rights. The Observers shall also be entitled to the same indemnification, insurance and other protections to which the other members of the Board are entitled, including as described in Section 3.14 hereof. The Corporation shall reimburse each Observer for so long the reasonable out-of-pocket expenses incurred by such Observer in connection with satisfying his or her role as CalPERS or its Affiliates beneficially own Observer, up to a maximum amount of $25,000 in any shares of Common Stock12-month period, unless otherwise agreed in writing between the Corporation and an Observer. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings Gotham and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting holders of the Company. Each New Unsecured Notes may replace their respective Observers, or any one Observer, with a different Observer shall be entitled at any time in their sole discretion by providing written notice thereof to receive the same notice of any such meeting as any director, Corporation and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken other Investors in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawSection 3.12(b). (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an the IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "FS -- Observers") at all regular and special meetings --------- of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) Prior to an the IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. (S) 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and ------------ together with the FS Observers and the CalPERS Observer referred to belowObservers, the "Observers") at all regular and special --------- meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for but only to the outsame extent that the Company reimburses the non-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting employee members of the CompanyBoard for such attendance expenses. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (ed) With respect to each committee of the Board for which BLUM XXXX or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM XXXX or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM XXXX or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM XXXX agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. BWSF, for so long as it is a Substantial Holder and holds any Series A Preferred Stock, SG, for so long as it is a Substantial Holder and holds any Series A Preferred Stock or Series B Preferred Stock, RRH, for so long as RRH is a Substantial Holder and holds any Series B Preferred Stock, QuestMark, for so long as QuestMark is a Substantial Holder and holds any Series C Preferred Stock, and GEPT, for so long as GEPT is a Substantial Holder and holds any Series C Preferred Stock, may each from time to time appoint a representative to attend meetings of the Board of Directors of the Company or any committee thereof as an observer (a) Prior to an IPOthe "BWSF Observer", the FS Entities"SG Observer", collectivelythe "RRH Observer", the "QuestMark Observer" and the "GEPT Observer", respectively). Neither the holders of the Series A Preferred Stock, the holders of Series B Preferred Stock, the holders of Series C Preferred Stock, the BWSF Observer, the SG Observer, the RRH Observer, the QuestMark Observer nor the GEPT Observer, however, shall have any duties, responsibilities or liability by virtue of attendance at such meetings or the failure to attend the same. The parties agree that the Founder shall be entitled to have two appoint observers in addition to the FS Director (the "FS Observers") at all regular and special attend meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of Directors of the outstanding Common Stock. (b) Prior to an IPO and solely for so long Company or any committee thereof as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer he deems appropriate (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Founder Observers") at all regular and special meetings which Founder Observers shall not have any duties, responsibilities or liability by virtue of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for or the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of attend the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawsame. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. Each of the Key Investor Stockholders, Resource America, Xxxxxxxx and Constitution shall have the right, for so long as such Key Investor Stockholder, Resource America, Xxxxxxxx or Constitution (atogether with each of their respective Affiliates and Permitted Transferees) Prior continues to an IPOhold at least five percent (5%) of the Common Stock acquired by such Key Investor Stockholder, Resource America, Xxxxxxxx or Constitution (including, for purposes of such calculation, the FS Entitiesnumber of Common Shares issuable upon conversion of all Preferred Stock, collectivelyif any, shall be entitled owned by such Key Investor Stockholder, Resource America, Xxxxxxxx or Constitution without regard to have two observers any limitations on conversion that may apply pursuant to the terms of the Preferred Stock) in the Private Placement, to designate one (1) person (in addition to the FS any Director (the "FS Observers"designated by such Key Investor Stockholder, Xxxxxxxx or Constitution) at all regular to receive Board materials and special to attend meetings of the Board for so long as and, with respect only to the FS EntitiesKey Investor Stockholders, collectively, beneficially own Common Stock representing at least 7.5% to the board of directors of any Subsidiary of the outstanding Common Stock. Company and any committee thereof in which that Key Investor Stockholder’s Investor Designee serves, in each case as observers (b) Prior to each, an IPO “Observer”); provided, however, that Observers will not be directors and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special attend meetings of the Board and any committee thereof solely as observers, and will not participate or have any voting rights to which directors are entitled. Each Key Investor Stockholder, Resource America, Xxxxxxxx and Constitution shall have the right to remove and replace its Observer at any time and from time to time. The Company shall furnish to each Observer (A) notices of Board of Director (or any applicable committee thereof) meetings no later than, and using the same form of communication as, notice of Board of Director (or any applicable committee thereof) meetings are furnished to directors and (B) copies of any materials prepared for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS of Directors (or its Affiliates beneficially own any shares of Common Stock. (dapplicable committee thereof) The Company shall reimburse each that are furnished to the directors no later than the time such materials are furnished to the directors; provided that failure to deliver notice, or materials, to such Observer for out-of-pocket expensesin connection with any such Observer’s right to attend and/or review materials with respect to, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder any meeting of the CompanyBoard of Directors (or any applicable committee thereof) shall not impair the validity of any action taken by the Board of Directors (or any applicable committee thereof) at such meeting. Each Observer shall be entitled required to receive the same notice execute or otherwise become subject to any codes of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter conduct or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent confidentiality agreements of the Board without a meeting. Notwithstanding the foregoing, no action Company generally applicable to directors or officers of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawCompany. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "FS Observers") at all regular ------------ and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. (S) 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and ------------ the CalPERS Observer referred to below, the "Observers") at all regular and --------- special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long ---------------- as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if anyany , relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) With respect to each committee of the Board for which BLUM XXXX or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM XXXX or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM XXXX or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM XXXX agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "FS Observers") at all regular and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) . Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. Section 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) . Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) . The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if anyany , relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) . With respect to each committee of the Board for which BLUM or xx the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or xx the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or xx the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees xxxees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "FS Observers") at all regular and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if anyany , relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) With respect to each committee of the Board for which BLUM XXXX or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM XXXX or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM XXXX or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM XXXX agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior Subject to an IPO, the FS Entities, collectively, Clause 6.6.2 each Investor shall be entitled to have two observers in addition appoint an Observer till such time that the shareholding of such Investor is at least equal to the FS Threshold Shareholding. Provided that a Qualifying Principal Investor who holds less than the Governance Threshold shall have a right to appoint an Observer, only if such Qualifying Principal Investor has not appointed an Investor Nominee Director (in accordance with Clause 5.2 above. Subject to Clause 5.2.4(b), such Qualifying Principal Investor’s right to nominate an Observer will cease with effect from the "FS Observers"date of appointment of an Investor Nominee Director by that Principal Qualifying Investor. b) at all regular and special meetings If the shareholding of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing a Qualifying Principal Investor is at least 7.5% of equal to the outstanding Common Stock. (b) Prior to an IPO and solely for so long as needed by DLJGovernance Threshold, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, then such Qualifying Principal Investor shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS appoint an Observer referred to below, the "Observers") at all regular and special meetings of as well as an Investor Nominee Director on the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each . c) The Observer shall be entitled to receive nominated by the same notice of any such meeting as any directorInvestor that holds the Threshold Shareholding, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive notices for all Board meetings and all committees thereofand attend the same (whether in person, telephonic or other), in a non-voting Observer capacity. The Company shall provide to each of the Observers, concurrently with and in the same manner as distributed to the Directors or other voting members of the respective Board, copies of any action all meeting notices, agendas, Board materials, information, draft resolutions, proposed to be taken actions by written consent of Consent, and other communications so distributed. It is hereby clarified that an Observer shall not have a right to vote in the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawMeetings. (d) The Observers appointed by Investors that holds the Threshold Shareholding under clause 5.2.4.(a), shall individually be referred to as an “Observer” and collectively be referred to as “Observers”. e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) heretoThe concerned Party may appoint Observer(s), BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director by sending a written intimation to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and Company. f) The Observers shall have the right to participate thereinattend each Board Meeting and meetings of the committees of the Board, but if so constituted. The Observers shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall also have the right to receive copies (i) the Business Plan (including the annual budget) 30 (thirty) days prior to the end of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action each Financial Year; (ii) MIS Information/reports within 10 (ten) days of the such committee duly taken end of each month. The Company and the Promoters shall ensure that no resolution related to the Investor Vote Matters is discussed in accordance with a Board Meeting unless the laws Observer appointed by the Qualifying Principal Investors are present or have waived off their right to attend the Board Meeting, prior to the commencement of the State meeting. g) The Company may, on request made by the respective Investor that has appointed an Observer in terms of DelawareClause 5.2.4, reimburse such reasonable expenses as are incurred by the Certificate Observers for the purposes of Incorporation and attending the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting board meetings of the committee if the presence Company, subject only to a cap of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidentialINR 20,000 per Observer for each Board Meeting.

Observers. Each Purchaser who purchases at least 531,915 shares of Series A Convertible Preferred Stock, and so long as such Purchaser continues to beneficially own at least 531,915 shares of Series A Convertible Preferred Stock or Common Stock (a) Prior as adjusted for a Recapitalization Event), may designate one person to serve as an IPO, the FS Entities, collectively, observer (an "OBSERVER"). An observer shall be entitled (i) to have two observers receive the same notice in addition to the FS Director respect of all meetings (the "FS Observers") at all both regular and special special) of the Board of Directors and each committee thereof (other than the Audit Committee and Compensation Committee) as required to be furnished to members of the Board of Directors of such committee by law or by the Certificate of Incorporation or the Bylaws of the Company, (ii) to attend all meetings of the Board for so long as of Directors and each committee thereof (other than the FS EntitiesAudit Committee and Compensation Committee), collectively, beneficially own Common Stock representing at least 7.5% (iii) to receive all information and reports which are furnished to members of the outstanding Common Stock. Board of Directors and each committee thereof (bincluding the Audit Committee and Compensation Committee) Prior to an IPO and solely for at the time so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer"furnished, and together with the FS Observers and the CalPERS Observer referred (iv) to below, the "Observers") participate in all discussions conducted at all regular and special meetings of the Board for so long as of Directors and each committee thereof (other than the DLJ Investors, collectively, beneficially own Audit Committee and Compensation Committee). In the event that the directors are discussing or voting on matters that directly relate to any business dealings between the Company and (i) Restricted Securities representing any Purchaser beneficially owning at least 1.0% 531,915 shares of the outstanding Common Series A Convertible Preferred Stock or (ii) any other vendor that competes with a majority in principal amount Purchaser that has observer rights hereunder, the Board may recuse all (but not less than all) of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to Observers until such matters have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own been concluded. An Observer may share any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance information gained from presence at such meetings with the Purchaser that designated such Observer and such Purchaser's employees, officers, directors, attorneys and advisors (collectively, the "PURCHASER'S REPRESENTATIVES"), but such information shall reimburse each Material Securityholder for otherwise be kept confidential by the out-of-pocket expensesObserver, if any, relating Purchaser and Purchaser's Representatives to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have extent that financial information or other confidential information with regard to the right to participate therein, but shall not have the right to vote on any matter or Company is required to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken kept confidential in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawSECTION 7.3. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, The Observers on the FS Entities, collectively, Steering Committee shall be entitled as follows: (i) One (1) representative selected (and from time to have two observers in addition to the FS Director time replaced) by MCC (the "FS Observers") at all regular and special “MCC Observer”); provided that MCC may designate an alternate representative to attend one or more meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing Steering Committee at least 7.5% MCC's discretion; (ii) The Director of the outstanding Common StockEnvironment Unit; and (iii) The General Manager of the Vanuatu Tourism Office (together with the Director of the Environment Unit, “Other Observers”). (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority Each of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled Observers may designate an alternate representative to have attend one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special or more meetings of the Board for so long Steering Committee in the event that such Observer is unable to attend. Each Other Observer shall serve in his or her capacity as a Government official and not in his or her personal capacity. If a person serving as an Other Observer resigns or is removed from such Government office, that person's position as an Observer will be taken by such person's successor in such Government office or, subject to approval by the DLJ InvestorsGovernment and MCC, collectively, beneficially own (i) Restricted Securities representing at least 1.0% by another government official of the outstanding Common Stock comparable rank from a ministry or (ii) a majority in principal amount of the Notesother government body relevant to Program activities. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but Observers shall not have the right any voting rights with respect to vote on any matter or action to be counted for purposes of determining whether a quorum is present thereattaken by the Steering Committee. In additionExcept as otherwise expressly provided in this Agreement, each Observer shall have the right to receive copies of any action proposed to be taken by written consent attend all meetings of the Board without a meeting. Notwithstanding the foregoingSteering Committee, no action participate in discussions of the Board duly taken Steering Committee, and receive all information and documents provided to the Steering Committee, together with any other rights (other than voting rights) granted to a Voting Member of the Steering Committee pursuant to this Agreement, including access to records, employees or facilities. (d) Each of the Government and MCA-Vanuatu hereby waives and releases all claims related to any liability or action arising out of each Observer's role as a non-voting observer on the Steering Committee. In all matters arising under or relating to the Compact, this Agreement, or the activities of MCA-Vanuatu, the MCC Observer shall not, in accordance with the laws Section 3(d)(ii)(5) of Annex 1 of the State Compact, be subject to the jurisdiction of Delawarethe courts or any other body of Vanuatu, the Certificate of Incorporation nor to any arbitral body, and the By-Laws nothing in such agreements or activities shall be affected construed as the consent by any failure to have provided notice an MCC Observer to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable lawjurisdiction. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior to an IPO, the FS Entities, collectively, shall be entitled to have two observers in addition to the FS Director (the "FS Observers") at all regular and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock. (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") at all regular and special meetings of the Board for so long as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") at all regular and special meetings of the Board for so long as CalPERS or its Affiliates beneficially own any shares of Common Stock. (d) The Company shall reimburse each Observer for out-of-pocket expenses, if any, relating to attendance at such meetings and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive the same notice of any such meeting as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth sxx xorth in Section 4.1(g) hereto, BLUM or the FS Entities, as the case may be, shall be entitled to xx have one observer at all meetings of such committee (provided that BLUM or the FS Entities, as the case may be, shall at such time be timx xx entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereof, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters xxxters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree to cause the any observer designated by it to keep any matters observed or materials received by them at any meeting of such committee strictly confidential.

Observers. (a) Prior In addition to an IPOits other rights under this Agreement, the FS Entities, collectively, Naxos shall be entitled to have two observers in addition designate one (1) non-voting observer, who is initially expected to the FS Director be Mr. Xxxxxx Xxxxx (the "FS “Naxos Observer”) and Mitsui CVP shall be entitled to designate one (1) non-voting observer (the “Mitsui Observer”). The Board may allow for one (1) additional non-voting observer, acting as representative of an Investor other than Naxos and Mitsui CVP or of other group(s) of Shareholders (the “Other Observer”, and collectively with the Naxos Observer and the Mitsui Observer, the “Observers") at all regular and special meetings of the Board for so long as the FS Entities, collectively, beneficially own Common Stock representing at least 7.5% of the outstanding Common Stock”). (b) Prior to an IPO and solely for so long as needed by DLJ, upon the advice of counsel, to maintain its qualification as a "Venture Capital Operating Company" pursuant to Section 29 C.F.R. ss. 2510.3, the DLJ Investors, by vote of a majority of the outstanding Restricted Securities held by the DLJ Investors, The Observers shall be entitled to have one observer (the "DLJ Observer", and together with the FS Observers and the CalPERS Observer referred to below, the "Observers") be present at all regular and special meetings of the Board for so long (and each committee thereof) (each, a “Corporation Governing Body”), as the DLJ Investors, collectively, beneficially own (i) Restricted Securities representing at least 1.0% of the outstanding Common Stock or (ii) a majority in principal amount of the Notes. (c) Prior to an IPO, CalPERS shall be entitled to have one observer (the "CalPERS Observer") well as at all regular and special meetings of the Board for so long as CalPERS board of directors (or its Affiliates beneficially own any shares similar governing body) of Common Stock. all direct and indirect Subsidiaries of the Corporation (dand each committee thereof) (each, a “Subsidiary Governing Body”). The Company Corporation shall reimburse notify the Observers of each Observer for out-of-pocket expensesmeeting of each Corporation Governing Body and each meeting of each Subsidiary Governing Body, if any, relating to attendance at such meetings including the time and shall reimburse each Material Securityholder for the out-of-pocket expenses, if any, relating to one representative place of such Material Securityholder attending each shareholder meeting of the Company. Each Observer shall be entitled to receive meeting, in the same notice of any such meeting manner and at the same times as any director, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each Observer shall have the right to receive copies of any action proposed to be taken by written consent of the Board without a meeting. Notwithstanding the foregoing, no action of the Board duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation and the By-Laws shall be affected by any failure to have provided notice to any Observer of any meeting of the Board or the taking of action by the Board without a meeting. Any Observer may be required by the Board to temporarily leave a meeting of the Board if the presence members of such Observer at the meeting at such time would prevent the Company from asserting the attorney-client Corporation Governing Body or other privilege with respect to matters discussed before the Board at such time. The FS Entities agree to cause the FS Observers to keep any matters observed or materials received by them at any meeting of the Board strictly confidential, subject to applicable law. The DLJ Investors agree to cause the DLJ Observer to keep any matters observed or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. CalPERS agrees to cause the CalPERS Observer to keep any mattexx xxxxrved or materials received by him or her at any meeting of the Board strictly confidential, subject to applicable law. (e) With respect to each committee of the Board for which BLUM or the FS Entities agrees in writing to waive its right set forth in Section 4.1(g) hereto, BLUM or the FS EntitiesSubsidiary Governing Body, as the case may be, are notified. (c) Each Observer shall (i) have the same access to information concerning the business and operations of the Corporation and its Subsidiaries, including, but not limited to, notes, minutes and consents, at the same times as the members of each Corporation Governing Body or Subsidiary Governing Body may receive access to such information, (ii) be entitled to have one observer at all meetings participate in discussions of such committee (provided that BLUM or the FS Entitiesaffairs, as the case may be, shall at such time be entitled to designate at least one director to the Board pursuant to Section 4.1 hereto). Each such observer shall be entitled to receive the same notice of any such meeting as any director that is a member thereoffinances and accounts of, and shall have consult with, and make proposals and furnish advice to, the right to participate thereinCorporation Governing Bodies and the Subsidiary Governing Bodies, but shall not have and the right to vote on any matter or to be counted for purposes of determining whether a quorum is present thereat. In addition, each such observer shall have the right to receive copies of any action proposed to be taken by written consent of such committee without a meeting. Notwithstanding the foregoing, no action members of the such committee duly taken in accordance with the laws of the State of Delaware, the Certificate of Incorporation Corporation Governing Bodies and the By-Laws Subsidiary Governing Bodies and the Corporation shall be affected by any failure to have provided notice to any observer of any meeting of such committee or the taking of action by such committee without a meeting. Any such observer may be required by such committee to temporarily leave a meeting of the committee if the presence of such observer at the meeting at such time would prevent the Company from asserting the attorney-client or other privilege with respect to matters discussed before the committee at such time. BLUM agrees to cause any observer designated by it to keep any matters observed or materials received by him or her at any meeting of such committee strictly confidential. The FS Entities agree use its best efforts to cause the officers of the Corporation and its Subsidiaries to take such proposals or advice seriously and give due consideration thereto, provided, that nothing herein is intended to require compliance with any observer designated such proposal or advice or to impose liability for any failure so to comply, and (iii) be provided with copies of all notices, minutes, consents, and forms of consents in lieu of meetings of the Corporation Governing Bodies and the Subsidiary Governing Bodies and all other material that the Corporation or any of its Subsidiaries provides to members of any Corporation Governing Body or Subsidiary Governing Body as such, in each case at the same time or times as such notices, minutes, consents or forms are issued or circulated by it to keep any matters observed or materials received by them at any meeting of to, or such committee strictly confidentialother material is provided to, such members.