Common use of Observation Rights Clause in Contracts

Observation Rights. In addition to the rights to nominate one or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. In addition The Holder of this Warrant shall (a) receive ------------------ notice of and be entitled to attend or may send a representative to attend all meetings of the rights Company's Board of Directors in a non-voting observation capacity and (b) receive copies of all correspondence, notices, packages and documents and other information provided to nominate one members of the Company's Board of Directors (including actions taken or more directors provided in Section 5.6, for to be taken by the Board of Directors on written consent) from the date hereof until such time as the Buyers or their affiliates continue to hold at least 10% of indebtedness evidenced by the total issued Note has been paid in full. Holder acknowledges that the relationship between it and outstanding Common Stock, the Company places Holder in a position to learn confidential information, both written and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliatesoral, about the Company's business operations, financial condition, assets and affairs. For purposes of this Sectionagreement, the term “Observation Rights” shall mean the right of Buyers or their affiliates all such information to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of be provided, together with any other information regarding the Company that has already been provided to Holder or its representative and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of employees, is hereinafter collectively referred to as the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time "Sensitive Material." Holder acknowledges that notice of such meetings it is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directorsaware, and shall be permitted to pose questions that it will advise its officers, directors, employees, advisors and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubtother representatives that federal and state securities laws prohibit any person who has received from an issuer material, the Observer shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material information about the issuer and matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information provided to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Neither the Observer and Company nor its affiliates nor their representatives, agents, employees or other related persons will have any liability to Holder, its employees, agents or representatives or any third parties resulting from the Boards of Directors and committees use of the Company Sensitive Material by Holder which Holder acknowledges to be the Company's property, to itself and its Subsidiaries in accordance with procedures and policies established from time agrees not to time in writing use, reveal, transfer, copy or disclose such Sensitive Material, directly or indirectly, to any other person for any purpose without the prior written consent of Company. Holder agrees to execute any additional confidentiality agreement reasonably required by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding in connection with any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsSensitive Material.

Observation Rights. In addition to the rights to nominate one or more directors provided in Section 5.6, for such time For so long as the Buyers or their affiliates Apollo and its Affiliates continue to hold at least 10% $22,500,000 of the total issued and outstanding Common StockMezzanine Notes, the Company and its Subsidiaries Apollo shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean have the right of Buyers or their affiliates to have a one (1) representative present (an “Observer”whether in person or by telephone) attend as an observer at all meetings (including telephonic meetings) of the Boards of Directors boards of the Company and its Subsidiaries (and their respective committeesaudit committees thereof); provided that such representative shall not be entitled to vote at such meetings; and provided further that such representative is reasonably acceptable to the Company. The Observer Company shall receive prior written notice of send to such representative all meetings of the Boards of Directors of the Company notices, information and its Subsidiaries and their respective committees at the same time other materials that notice of such meetings is given are distributed to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions provide Apollo with a notice and the Board agenda of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member each meeting of the Board of Directors or any committee boards (and audit committees thereof) of the Company and its Subsidiaries, at the same time as delivered to the Directors. Apollo shall provide notice to the Company of the identity and address of, or any change with respect to the identity or address of, their representative. Notwithstanding the foregoing, the Company or its Subsidiaries, as applicable, shall be entitled to (a) excuse such representative of Apollo from any portion of a meeting of the boards (or audit committee thereof) which discusses any matters directly relating to Apollo, the Mezzanine Notes or the Mezzanine Notes Indenture and (b) withhold information from the Apollo representative delivered to the boards (or audit committees thereof) prior to a meeting of the applicable board (or audit committee thereof), in each case if the Company, or its Subsidiaries, as applicable, believes there is a reasonable likelihood that the receipt of such information by the Apollo representative would create a conflict of interest for the Apollo representative or affect the attorney/client privilege of the Company and its legal advisors or its Subsidiaries or their legal advisors, as applicable. The Company shall reimburse or shall cause its Subsidiaries to reimburse the Observer Apollo representative for the all reasonable travel and other out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing incurred by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed Apollo representative in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance connection with applicable laws attending board or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementscommittee meetings.

Observation Rights. In addition The Companies shall invite (by written notice given to the rights Purchaser) two (2) representatives of Purchaser to nominate one or more directors provided attend in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an non-voting observer capacity all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member of the Board of Directors or any committee of the Company Companies and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses committees thereof including all executive sessions of the Observer in attending Boards and committees, and all meetings of the stockholders of the Companies, provided, however, that no such representatives shall attend meetings of independent directors of the Companies only, so long as exclusion from such meetings on is required by the Sxxxxxxx-Xxxxx Act of 2002 as evidenced by a legal opinion delivered by outside legal counsel chosen by the Parent and reasonably agreed to by the Purchaser (with the cost of such legal opinion being borne by the Parent), or portions of the meetings of the Board of Directors of the Parent where the Parent discusses refinancing options and other matters in each case related to Purchaser. Notice of such meetings shall be given to Purchaser in the same basis that manner and at the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything same time as to the contrary contained hereindirectors, committee members and/or stockholders of the Observation Rights Companies, as the case may be (which in any event shall not be less then forty-eight (48) hours prior to such meeting unless otherwise agreed to by Purchaser in writing). Purchaser shall be conditioned on the Observer maintaining the confidentiality provided with copies of all material non-public material and information (including a meeting agenda, if one is prepared) that is provided to such directors, committee members and/or stockholders (whether prior to, at, or subsequent to any such meetings), at the Observer same time as such materials are provided to such directors, committee members and/or stockholders, and (c) copies of the Boards minutes of all meetings of such directors, committee members and/or stockholders (other than meetings of the Board of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established Companies and/or Parent or portions thereof which the Purchaser’s representatives are prohibited from time to time in writing by the Company and its Subsidiaries and provided attending pursuant to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions first sentence of this Section 5.72.1), concurrently with the distribution of such minutes to such directors, committee members and/or stockholders, but in no event later than forty-five (45) days after each such meeting. Each of the Companies shall ensure that no board, committee or other governing body of it meets in any informal capacity without a representative of Purchaser in observance. Purchaser’s rights under this Section 2.1 shall be effective until the later of (i) the payment by the Parent of all of its outstanding obligations under the Notes and (Bii) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings rights under this Agreement or Section 2.1 are no longer necessary to qualify under the “Venture Capital Operating Company” exemption of the Employee Retirement Income Security Act of 1934, to be determined in accordance with regulatory requirementsthe sole discretion of the Purchaser.

Observation Rights. In addition to To the rights to nominate one or more directors provided in Section 5.6extent that, for such at any time as after the Buyers or their affiliates continue to hold at least 10% Closing Date, and during the Applicable Period, a representative of the total issued and outstanding Common StockPurchaser shall not be a member of the Company's board of directors, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative of the Purchaser designated by the Purchaser from time to time in its sole discretion (an “Observer”the "PURCHASER REPRESENTATIVE") shall be entitled to attend as an observer all meetings (including telephonic meetings) of the Boards board of Directors directors of the Company (including, but not limited to, any and its Subsidiaries all committees thereof and their respective committees. The Observer shall receive prior written notice telephonic meetings with respect thereto); provided, however, that the Company's board of all meetings directors may require that the Purchaser Representative not attend any particular meeting of the Boards Company's board of Directors of the Company and its Subsidiaries and their respective directors or committees at the same time that notice thereof or be excused from any portions of such meetings is given that involve matters or business that the Company's board of directors determines in good faith are matters or business that must be considered by the Company's board of directors (or the applicable committee thereof) without the Purchaser Representative being in attendance; provided, however, that the Purchaser Representative shall not be excluded from any two (2) consecutive meetings. Except with respect to matters or business as to which the Company's board of directors has determined that must be considered by the board of directors (or the applicable committee thereof) without the Purchaser Representative being in attendance, the Purchaser Representative shall be provided with the same meeting notices and shall receive all materials and information provided from time to time to as the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Company's Board of Directors shall provide complete responses to (including, without limitation, any and all committees thereof), including, without limitation, copies of all proposed and final resolutions, minutes and written consents. The Company shall, at all times during the questions posed. For the avoidance of doubt, the Observer Applicable Period during which a Purchaser Director shall not be deemed to be a member of the Company's board of directors, allow the Purchaser Representative (or such other person designated by the Purchaser Representative from time to time) to be present at the business offices of the Company during regular business hours and the Company further covenants to provide to such Purchaser Representative (and such designee, if any), during regular business hours, upon seventy-two (72) hours notice to the Chief Executive Officer of the Company, access to all of the Company's books, records, files, documentation and other information related to the past, present and/or future operations of the Company and any of its subsidiaries or its parent, if any, that are located at the business offices of the Company or that can be obtained by the Company without unreasonable cost or effort, and that would normally be available to a member of the Company's Board of Directors or any audit or other committee of the Company Board of Directors in the exercise of his responsibility and its Subsidiariesfiduciary duties as such. The Company shall reimburse the Observer for the out-of-pocket expenses right of the Observer in attending such Purchaser Representative (and designee, if any) to attend board meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything and have access to the contrary contained hereinCompany information, including to be present at the Observation Rights shall be Company's offices, is conditioned upon receipt from Purchaser and such Purchaser Representative (and designee, if any) of a confidentiality agreement containing prohibitions on disclosure of the Observer maintaining the confidentiality of all material non-public material Company's Confidential Information (defined below) and information provided using such Confidential Information to the Observer and the Boards of Directors and committees detriment of the Company and/or its shareholders, which agreement shall be in form and its Subsidiaries in accordance with procedures and policies established from time substance reasonably satisfactory to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsPurchaser.

Observation Rights. In addition to the rights to nominate one or more directors provided in Section 5.6, for Until such time as the Buyers earlier to occur of (a) Nortel Networks no longer holds any Loans or their affiliates continue to hold at least 10% Commitments hereunder or (b) the Debt Service Coverage Ratio of the total issued and outstanding Common StockBorrower or its Consolidated Subsidiaries has equaled or exceeded 1.00 to 1.00 (if calculated prior to the Amortization Commencement Date, determined on a pro forma basis as if the Amortization Commencement Date had occurred four fiscal quarters prior to such date of calculation) for a period of four consecutive fiscal quarters, the Company and its Subsidiaries Borrower and/or Holdings shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written give Nortel Networks notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member each meeting of the Board of Directors of Holdings and each meeting of any committee of the Board of Directors of Holdings not less than ten Business Days prior to the dates CREDIT AGREEMENT - Page 76 84 of any such meetings and allow a Person designated by Nortel Networks to serve as an observer (the "Observer") who may attend all such meetings of the Board of Directors of Holdings and any committee of the Board of Directors of Holdings. The Observer will not be a director, nor entitled to vote on any matter submitted to the Board of Directors of Holdings (or any committee of such board), and will have no rights, duties, liabilities or obligations of a director. The Observer may be excused at the Company request of a majority of the directors present at any such meetings for discussions involving sensitive information regarding competitors of Nortel Networks or Nortel Networks itself. The Observer may share any information gained from presence at such meetings with the employees, officers, directors, attorneys and advisors of Nortel Networks who have a need to know such information in the performance of their duties (collectively, the "Representatives"), but such information shall otherwise be kept confidential by Nortel Networks and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on Representatives to the same basis extent that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything financial information with regard to the contrary contained herein, the Observation Rights shall Holdings is required to be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries kept confidential in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions terms of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsAgreement.

Observation Rights. In addition Pursuant to the rights terms of this Agreement, the Observers shall be entitled to nominate one or more directors provided in Section 5.6attend, for such time as the Buyers or their affiliates continue to hold at least 10% observers, all meetings of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes Company's Board of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the Boards outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Company and its Subsidiaries and their respective committeesObservers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. The Observer shall receive prior written notice of all meetings of 106 Except with respect to matters or business as to which the Boards Company's Board of Directors has determined should be considered by the Board of Directors without the Company Observers being in attendance and its Subsidiaries and their respective committees at for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same time that notice of such meetings is given to the directors meeting notices and shall receive all materials and information provided from time to time to as the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Company's Board of Directors, including but not limited to copies of all proposed and shall be permitted to pose questions final resolutions, minutes and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenseswritten consents. Notwithstanding anything to the contrary contained herein, the Observers may opt to terminate their Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior rights effective upon 5 business days written notice to the Company, disclose such material following which time the Observers will no longer be provided with meeting notices and information material. Upon electing to terminate their status as Observers, the Observers will in accordance with no way be considered by the Corporation to be insiders or affiliates, unless required by applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementslaw.

Observation Rights. In addition to the rights to nominate one or more directors provided in Section 5.6Each of Mitsui & Co. Venture Partners II, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued L.P. (“Mitsui”) and outstanding Common StockEaston Capital Partners, the Company and its Subsidiaries L.P. (“Easton”) shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean have the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards Board of Directors, and each of Mitsui and Easton shall have the right to attend up to 50% of such meetings in any calendar year (or designate its representative to attend such meeting on its behalf) as a nonvoting observer and to comment for the record at any such meeting, provided that Mitsui and Easton (or their designated representatives) shall coordinate their schedules such that they (or their designated representatives) are not in attendance at the same meeting. Xxxxxxx & Xxxxxxx Development Corporation shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at such meeting. Subject to the fulfillment of the obligations contained in Section 5.1(a), effective as of January 1, 2008, Intersouth (as defined below) shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at any such meeting. Each observer so appointed as provided above shall sign a confidentiality agreement reasonably acceptable to the Board of Directors of the Company and its Subsidiaries and their respective committees prior to his or her first attendance to his or her first meeting of the Board of Directors. The Company shall provide each such observer attending a meeting of the Board of Directors the materials provided to the Board of Directors with respect to such meeting at the same time that notice of such meetings is given to the directors and shall receive all materials and information as provided from time to time to the members of the Boards Board of Directors. Notwithstanding anything contained herein to the contrary, no observer shall be permitted to attend any meeting of any committee of the Board of Directors without the consent of a majority of the Company and its Subsidiaries and their respective committeesmembers of such committee. Subject The Board of Directors, or the members of any committee thereof, as applicable, shall have the right to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions prevent access by any or all observers to any meeting of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubtor committee thereof, the Observer shall not be deemed to be respectively, or any portion thereof, if a member majority of the Board of Directors or any committee directors present at such meeting deem, in their sole discretion, such action necessary to protect the confidential information of the Company and its Subsidiaries. The Company shall reimburse or in order to comply with the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements4.1(d).

Observation Rights. In addition At any time Perseus-Soros BioPxxxxxceutical Fund, LP ("PERSEUS-SOROS") anx xxx Affiliates (as such term is defined in Rule 405 of the Securities Act) are not represented on the Board pursuant to Section 3.7, so long as Perseus-Soros owns xx xeast 25% of the rights to nominate one shares of the Series A Preferred Stock acquired by it on the date hereof or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued outstanding shares of Common Stock on an "as-converted basis," Perseus-Soros shalx xxxe the right to (a) appoint a non-voting representative (the "OBSERVER") to attend meetings of the Board, to change the non-voting representative so appointed at any time and, upon the resignation of such representative for any reason, to reappoint such a representative, if and outstanding Common Stockfor so long as Perseus-Soros does xxx have a representative on the Board; (b) make proposals, recommendations and suggestions to the Company's officers and directors relating to the business and affairs of the Company at such reasonable times as may be requested by Perseus-Soros but xx xx event shall the Company be required to accept such proposals, recommendations or suggestions; (c) discuss the Company's business and affairs with the Company's officers, directors and independent accountants at such reasonable times as may be requested by Perseus-Soros; (d) xxxx access to such other information relating to the affairs of the Company as Perseus-Soros may xxxxxnably request; and (e) have access to the properties and facilities of the Company at such reasonable times as may be requested by Perseus-Soros. In xxxxxion, the Company shall provide Perseus-Soros with x xxpy of any materials to be distributed or discussed at such meetings at the same time as provided to members of the Board. The Observer may be excluded from any meeting or portion thereof and Perseus-Soros may xx xxcluded from access to certain information and the properties and facilities of the Company if and to the extent a majority of the Board reasonably determines in good faith that such Observer's attendance at such meeting or portion thereof or Perseus-Soros's rexxxxx xf such information or access to the properties and facilities of the Company would adversely affect the attorney-client privilege between the Company and its Subsidiaries shall extend Observation Rights counsel, involve a conflict of interest between the Company and Perseus-Soros with xxxxect to a material issue for the Company or might violate any requirement of law, contract or confidentiality by which the Company is bound. To the extent the information is non-public, Perseus-Soros covexxxxx and agrees that it will not divulge such confidential information until such time as such information (1) is or becomes generally available to the public other than as defined below) to Buyers a result of a disclosure by Perseus-Soros or ixx xxfiliates or their affiliates. For purposes of this Sectionrespective representatives, the term “Observation Rights” shall mean the right of Buyers or their affiliates (2) was within Perseus-Soros's poxxxxxxxn prior to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors its being furnished to Perseus-Soros by ox xx behalf of the Company and pursuant hereto, provided that the source of such information was not bound by a non-disclosure or confidentiality agreement with respect to such information, or (3) becomes available to Perseus-Soros on a xxx-confidential basis from a source other than the Company or any of its Subsidiaries and their respective committeesrepresentatives, provided that such source is not bound by a non-disclosure or confidentiality agreement with the Company with respect to such information or is not otherwise prohibited from transmitting the information to Perseus-Soros. The Observer shall receive prior If Xxxxxus-Soros becoxxx xegally obligated to disclose confidential information by any governmental entity with jurisdiction over it or pursuant to any proceeding (by oral questions, interrogations, requests for information or documents, subpoena, civil investigative demand or similar process) (each a "PROCEEDING"), Perseus-Soros will xxxx the Company prompt written notice of all meetings to allow the Company to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the Boards of Directors information to be so disclosed and a copy of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given order (to the directors extent not prohibited in connection with any such Proceeding). Perseus-Soros will xxxxlose only such information as is legally required and shall receive all materials and will use commercially reasonable efforts to obtain confidential treatment for any confidential information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committeesthat is so disclosed. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer Any such disclosure shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions violation of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements8.1.

Observation Rights. In addition Subject to all terms and conditions of this Agreement, commencing on the rights to nominate one or more directors provided in Section 5.6date of this Agreement, for such time so long as the Buyers or their affiliates continue to hold Housatonic holds at least 10% five percent (5%) of the total issued and outstanding shares of Company Common Stock, the Company and its Subsidiaries Housatonic shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates be entitled to have a one representative (an “Observer”) of Housatonic attend as an observer all meetings (including telephonic meetings) of the Boards Board of Directors of the Company in a nonvoting observer capacity and its Subsidiaries and their respective committees. The Observer shall to receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Company's Board of Directors (the “Observation Rights”). The Observation Rights must be exercised in person and may not utilize any recorded media of any nature or kind. Housatonic agrees, on behalf of itself and any representative exercising the Observation Rights set forth herein, that so long as it shall provide complete responses exercise its Observation Right (i) it shall hold in strict confidence all information and materials that it may receive or be given access to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member in connection with meetings of the Board of Directors and to act in a fiduciary manner with respect to all such information so provided (provided that this shall not limit its ability to discuss such matters with its officers, directors or legal counsel, as necessary), and (ii) the Board of Directors may withhold from it certain information or material furnished or made available to the Board of Directors or exclude it from certain confidential “closed sessions” of the Board of Directors if the furnishing or availability of such information or material or its presence at such “closed sessions” would jeopardize the Company’s attorney-client privilege or if the Board of Directors otherwise reasonably so requires, including, without limitation, if Housatonic is engaged, directly or indirectly, in any activity which the Board of Directors deems to be competitive with the Company. Housatonic shall not trade in the Common Stock or any committee other securities of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses while in possession of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material information and information provided Housatonic shall adhere to the Observer and the Boards of Directors and committees securities window trading policies of the Company and its Subsidiaries as in accordance with procedures and policies established effect from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementstime-to-time.

Observation Rights. In addition So long as Initial Lender remains a Lender hereunder, and subject to the rights Initial Lender’s obligations with respect to nominate confidentiality pursuant to Section 8.18, Borrower shall grant the Initial Lender the right to appoint one (1) observer who shall, other than with respect to matters concerning the Credit Documents or more directors provided in Section 5.6the Loan, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights be entitled (as defined belowa) to Buyers or their affiliates. For purposes receive contemporaneously the same notice and other materials in respect of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetingsboth regular and special) or written consents of the Boards Board of Directors and each committee thereof (excluding any audit or compensation committee thereof) as are furnished to members of said Board of Directors or such committee, together with an agenda for any such meetings (except that in the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice case of all non-regularly scheduled meetings of the Boards of Directors executive committee of the Company and its Subsidiaries and their respective committees at the same time that notice Board of Directors, such meetings is given materials need only be furnished to the directors and shall receive all materials and information provided from time to time such observer reasonably promptly after they are furnished to the members of the Boards executive committee), (b) to attend all meetings (and review all written consents prior to the execution thereof) of the Board of Directors and such committees thereof and (c) to observe all discussions conducted at meetings (or with respect to actions to be taken by written consent) of the Company Board of Directors and its Subsidiaries such committees thereof, excluding non-regularly scheduled meetings and their respective committees. Subject to ordinary and reasonable procedural rules, actions of the Observer may participate in a meaningful manner in discussions executive committee of matters brought to the Board of Directors; provided, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubthowever, the Observer such observers shall not be deemed to be constitute a member of the Board of Directors or any committee thereof and shall not be entitled to vote on any matters presented to said Board of the Company and its SubsidiariesDirectors or any committee thereof. The Company shall reimburse the Observer for the reasonable travel and out-of-pocket expenses of the Observer incurred by any such observer in attending any such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing reimbursed by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsBorrower.

Observation Rights. In addition to To the rights to nominate one or more directors provided in Section 5.6extent that (i) an employee of LLR Partners, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings Inc. is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member of the Board of Directors and (ii) LLR owns Equity Securities representing more than five percent (5%) of the total then outstanding Equity Securities on a fully diluted basis (excluding, for purposes of calculating LLR’s ownership percentage under this Section 3.5, any issuances of Equity Securities by the Company after the Effective Date), LLR shall have the right to designate one individual to attend all meetings of the Board of Directors as a non-voting observer (an “Observer”); provided that such non-voting observer shall not have the right to participate in any discussion conducted during a meeting of the Board of Directors unless such non-voting observer is explicitly recognized by the Chairman of the Board of Directors. The Observer shall be invited (in the same manner and at the same time as the member of the Board of Directors) to attend all meetings of the Board of Directors or any committee subsidiary of the Company (including telephonic or other electronic meetings to the extent that members of the Board of Directors are attending such meetings in such manner) and shall receive (in advance, to the extent members of Board of Directors receive such materials in advance) copies of all notices, minutes, consents, and other material that the Company provides to each of the members of the Board of Directors in connection with any meeting or consent or otherwise by reason of their membership; provided, however, that each Observer shall hold in confidence and trust all information provided to, or obtained by, them. Notwithstanding the foregoing, the Board of Directors shall have the right, in its sole discretion, to meet in confidential sessions and to not provide access to such sessions or the information discussed in such sessions to any or all Observers, as applicable, if the Board of Directors shall determine that such confidential session is (a) necessary to preserve an attorney-client privilege, (b) in the best interest of the Company and its Subsidiaries. The Company shall reimburse where such Observer, or the Observer for entity it represents, has an interest in the out-of-pocket expenses of subject matter under discussion, (c) necessary to discharge the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained hereindirectors’ fiduciary duties, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing or (d) otherwise advised by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementscounsel.

Observation Rights. In addition to the rights to nominate one or more two directors provided in Section 5.65.5, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.75.6, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. In addition Two representatives appointed by the Purchasers (the "Current Observers" and collectively with the Purchasers' Replacement Observers, the "Observers")) shall be entitled to serve as observers at all meetings of the Board and each Subsidiary Board, and any committees thereof. Such right shall from time to time be exercisable by delivery to the rights to nominate one or more directors provided in Section 5.6, for such time as Company of written notice from the Buyers or their affiliates continue to hold at least 10% Purchasers specifying the names of the total issued Current Observers. Each Observer shall have all of the rights of a member of the Board and outstanding Common Stockeach Subsidiary Board, the Company and its Subsidiaries provided, that no Observer shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean have the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) vote on matters on which the members of the Boards of Directors Board or any Subsidiary Board are entitled to vote. Each of the Company and its Subsidiaries will give each Observer reasonable prior notice (it being agreed that the same prior notice given to the Board and their respective committees. The Observer each Subsidiary Board shall receive be deemed reasonable prior written notice) in any manner permitted in the Company's or each Subsidiary's By-laws for notices to directors of the time and place of any proposed meeting of each such Board of Directors, such notice in all cases to include true and complete copies of all meetings of the Boards of Directors documents furnished to any director in connection with such meeting. Each Observer will be entitled to be present in person as an observer at any such meeting or, if a meeting is held by telephone conference, to participate therein. Each of the Company and its Subsidiaries and their respective committees at the same time that notice will deliver to each Observer copies of such meetings is given to the directors and shall receive all materials and information provided papers which may be distributed from time to time to the members of the Boards Board and each Subsidiary Board at such time as such papers are so distributed to them, including copies of Directors any written consent. In addition, from time to time upon the request of each Observer, the Company or each Subsidiary will furnish to such Observer such information regarding the business, affairs, prospects and financial condition of the Company or each Subsidiary as such Observer may reasonably request. Each of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rulesshall pay, or reimburse, the Observers for all travel and related expenses incurred by the Observers in connection with attending such meetings and monitoring the Purchasers' investment in the Convertible Debentures. Each Observer shall hold in confidence all nonpublic information of the Company provided or made available to such Observer pursuant to this Section 6.2(b) until such time as such information has become publicly available other than as a consequence of any breach by such Observer or any Purchaser of its confidentiality obligations hereunder (provided that such information may participate be disclosed to any other Persons who are bound by this provision) and shall not (1) trade or otherwise directly or indirectly transfer any Securities of the Company in violation of the Securities Act or Exchange Act or (2) use such information for any purpose other than exercise of its rights as a meaningful manner holder of Securities and its rights under this Agreement and the other Financing Documents. The rights of the Purchasers in discussions subsections (a) and (b) above are all of matters brought the Purchasers' rights with respect to the Board appointment of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member members of the Board of Directors or and any committee of the Company Subsidiary Board and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer rights, and are not in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything addition to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information rights provided to the Observer Purchasers pursuant to Section 5.3(c) of the Securities Purchase Agreement dated as of January 10, 2001, among the Purchasers and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. In addition At any time Perseus-Xxxxx BioPharmaceutical Fund, LP ("Perseus-Xxxxx") and its Affiliates (as such term is defined in Rule 405 of the Securities Act) are not represented on the Board pursuant to the rights to nominate one or more directors provided in Section 5.63.7, for such time so long as the Buyers or their affiliates continue to hold Perseus-Xxxxx owns at least 25% of the shares of the Series A Preferred Stock acquired by it on the date hereof or 10% of the total issued outstanding shares of Common Stock on an "as-converted basis," Perseus-Xxxxx shall have the right to (a) appoint a non-voting representative (the "Observer") to attend meetings of the Board, to change the non-voting representative so appointed at any time and, upon the resignation of such representative for any reason, to reappoint such a representative, if and outstanding Common Stockfor so long as Perseus-Xxxxx does not have a representative on the Board; (b) make proposals, recommendations and suggestions to the Company's officers and directors relating to the business and affairs of the Company at such reasonable times as may be requested by Perseus-Xxxxx but in no event shall the Company be required to accept such proposals, recommendations or suggestions; (c) discuss the Company's business and affairs with the Company's officers, directors and independent accountants at such reasonable times as may be requested by Perseus-Xxxxx; (d) have access to such other information relating to the affairs of the Company as Perseus-Xxxxx may reasonably request; and (e) have access to the properties and facilities of the Company at such reasonable times as may be requested by Perseus-Xxxxx. In addition, the Company shall provide Perseus-Xxxxx with a copy of any materials to be distributed or discussed at such meetings at the same time as provided to members of the Board. The Observer may be excluded from any meeting or portion thereof and Perseus-Xxxxx may be excluded from access to certain information and the properties and facilities of the Company if and to the extent a majority of the Board reasonably determines in good faith that such Observer's attendance at such meeting or portion thereof or Perseus-Xxxxx'x receipt of such information or access to the properties and facilities of the Company would adversely affect the attorney-client privilege between the Company and its Subsidiaries shall extend Observation Rights counsel, involve a conflict of interest between the Company and Perseus-Xxxxx with respect to a material issue for the Company or might violate any requirement of law, contract or confidentiality by which the Company is bound. To the extent the information is non-public, Perseus-Xxxxx covenants and agrees that it will not divulge such confidential information until such time as such information (1) is or becomes generally available to the public other than as defined below) to Buyers a result of a disclosure by Perseus-Xxxxx or its affiliates or their affiliates. For purposes of this Sectionrespective representatives, the term “Observation Rights” shall mean the right of Buyers (2) was within Perseus-Xxxxx'x possession prior to its being furnished to Perseus-Xxxxx by or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors on behalf of the Company and pursuant hereto, provided that the source of such information was not bound by a non-disclosure or confidentiality agreement with respect to such information, or (3) becomes available to Perseus-Xxxxx on a non-confidential basis from a source other than the Company or any of its Subsidiaries and their respective committeesrepresentatives, provided that such source is not bound by a non-disclosure or confidentiality agreement with the Company with respect to such information or is not otherwise prohibited from transmitting the information to Perseus-Xxxxx. The Observer shall receive prior If Perseus-Xxxxx becomes legally obligated to disclose confidential information by any governmental entity with jurisdiction over it or pursuant to any proceeding (by oral questions, interrogations, requests for information or documents, subpoena, civil investigative demand or similar process) (each a "Proceeding"), Perseus-Xxxxx will give the Company prompt written notice of all meetings to allow the Company to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the Boards of Directors information to be so disclosed and a copy of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given order (to the directors extent not prohibited in connection with any such Proceeding). Perseus-Xxxxx will disclose only such information as is legally required and shall receive all materials and will use commercially reasonable efforts to obtain confidential treatment for any confidential information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committeesthat is so disclosed. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer Any such disclosure shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions violation of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements8.1.

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

Observation Rights. In addition From the date of this Agreement and until all the Notes have been fully paid and Pyxis does not have any obligation to purchase Notes from the Company, Pyxis shall be entitled to designate one individual reasonably acceptable to the rights Company (the "OBSERVER") who shall be entitled to nominate one notice of, to attend and to receive copies of any documentation distributed to members before, during or more directors provided in Section 5.6after, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall be permitted to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed any action to be a member taken by written consent) of the Board of Directors or any committee (the "BOARD") of the Company and its Subsidiaries. The all committees thereof; provided however, that the Company shall reimburse reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof (so long as the Company notifies the Observer for of such withholding and of any action taken by the out-of-pocket expenses Board as a result of such meeting) if access to such information or attendance at such meeting would, (i) in the judgment of the Observer in attending such meetings on Company's outside counsel, adversely affect the same basis that the directors are reimbursed for their outattorney-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of client privilege between the Company and its Subsidiaries counsel or cause the Board to breach its fiduciary duties, or (ii) in accordance the good faith determination of a majority of the Board, result in a conflict of interest with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided due to the Observer; however's and Pyxis's relationships with their Affiliates. The Observer shall not be (a) permitted to vote at any meeting of the Board, or (b) counted for purposes of determining whether there is sufficient quorum for the Board to conduct its business. The parties acknowledge and agree that notwithstanding any such procedurescontrary authority, if any, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information owe no fiduciary or other duties to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who stockholders of the Company or otherwise have agreed in writing any directorial or other duties or liabilities to observe the confidentiality provisions of this Section 5.7Company or its stockholders. Pyxis shall designate, and (B) provided may replace, the Observer gives prior with or without cause in its sole discretion by providing written notice to the Company at least five business days prior to any such action taking effect. The Company acknowledges that Pyxis will likely have, from time to time, information that may be of interest to the Company ("INFORMATION") regarding a wide variety of matters including, for example, (1) Pyxis's technologies, plans and services, and strategies relating thereto, (2) current and future investments Pyxis has made, may make, may consider or may become aware of with respect to other companies and other technologies, products and services that may be competitive with the Company's, and (3) developments with respect to the technologies, products and services, and plans and strategies relating thereto, of other companies, including, without limitation, companies that may be competitive with the Company. The Company recognizes that a portion of such Information may be of interest to the Company. Such Information may or may not be known by the Observer. The Company, as a material part of the consideration for this Agreement, agrees that Pyxis and its Observer shall have no duty to disclose such material and information in accordance with applicable laws any Information to the Company or legal process, permit the Company to participate in any litigation projects or other proceedings under this Agreement investments based on any Information, or in accordance with regulatory requirementsto otherwise take advantage of any opportunity that may be of interest to the Company if it were aware of such Information, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or otherwise that could limit Pyxis's ability to pursue opportunities based on such Information or that would require Pyxis or the Observer to disclose any such Information to the Company or offer any opportunity relating thereto to the Company.

Observation Rights. In addition Except for such Syndicate Stockholders who have waived their rights under this Section 7.05, prior to the rights to nominate one or more directors provided in Section 5.6an Initial Public Offering, those Syndicate Stockholders individually purchasing Shares hereunder for an aggregate Purchase Price of at least $19.5 million (treating, for such purposes hereof, NIB Capital Private Equity Co-Investments 2000 C.V., NIB Capital Private Equity Later Stage Co-Investments Custodian II B.V. and their Permitted Transferees as one Syndicate Stockholder) and not otherwise waiving their rights under this Section 7.05 (the “Syndicate Group”) shall collectively be entitled to appoint at any one time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a one representative (an the “Observer”) attend to the Board. The Syndicate Group agrees that the Observer shall be designated by members of the Syndicate Group on a rotating basis for each regularly scheduled meeting of the Board. The Syndicate Group shall notify the Company as an observer to the identity of the Observer from time to time and the Company shall be entitled to rely on that notice until it receives another notice identifying a new Observer. The Observer shall (i) receive all notices and information that the Company distributes to the Board in connection with regularly scheduled meetings (including telephonic but not special meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards of Directors of the Company and its Subsidiaries and their respective committees Board at the same time that notice of such meetings is and manner as given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors Board and (ii) have the right to attend and observe in a non-voting capacity all regularly scheduled meetings (but not special meetings) of the Board; provided, however, that the Company and its Subsidiaries and their respective committees. Subject reserves the right to ordinary and reasonable procedural rules, exclude the Observer may participate in a meaningful manner in discussions from access to any material or meeting or portion thereof if the Company believes on the advice of matters brought counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege; and, provided further, that except for any such information provided to Stockholders entitled to information distributed to the Board of Directors, and shall be permitted pursuant to pose questions and the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubtSection 11.05 hereof, the Observer shall not agree to maintain the confidentiality of all Company information and all proceedings of the Board to the same extent as he would be deemed required to do if he were a director of the Company. The right of any individual Syndicate Stockholder to be a member of the Board Syndicate Group shall terminate on the date on which the value of Directors or any committee its Shares (calculated based upon the purchase prices set forth in Section 2.01) that continue to be held by such Syndicate Stockholder falls below 50% (as a result of Transfers, except for Transfers to a Permitted Transferee) of the Company and its Subsidiaries. The Company shall reimburse initial value of such Shares (calculated based upon the Observer for the out-of-pocket expenses of the Observer purchase prices set forth in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements2.01).

Observation Rights. In addition to (a) Provided that (i) the rights to nominate one or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold respective Investor (other than Avalon Ventures (“Avalon”)) holds at least 103% of the total issued outstanding Preferred Stock of the Company (on an as-converted basis), and outstanding Common Stock(ii) such Investor (other than Avalon) is not a Non-participating Holder or Non-participating Purchaser (each as defined in the Charter), the Company shall allow one representative designated by GIMV NV, one representative designated by Roche Finance Ltd (“Roche”), one representative designated by Apposite, one representative designated by MedImmune, one representative designated by Avalon, one representative designated by Radius Venture Partners III, LLC (“Radius”) and its Subsidiaries shall extend Observation Rights one representative designated by OrbiMed Advisors, LLC (as defined below“OrbiMed”) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards Company’s Board of Directors of in a nonvoting capacity, and in connection therewith, the Company shall give such representatives copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Subsidiaries and their respective committees Board of Directors at the same time that notice of it provides such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought to the Board of Directors; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential proprietary information or for other similar reasons. Each of GIMV NV, Roche, Apposite, MedImmune, Avalon, Radius and OrbiMed agrees, and shall be permitted any representatives of GIMV NV, Roche, Apposite, MedImmune, Avalon, Radius and OrbiMed will agree, to pose questions hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with the Board of Directors shall provide complete responses to the questions posed. For the avoidance of doubt, the Observer shall not be deemed to be a member of the Board of Directors or any committee of the Company and its Subsidiariesrights set forth in this Section 3.5. The Company shall reimburse the Observer not be responsible for the out-of-pocket reimbursement of any expenses incurred by such representatives in connection with attending meetings of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality Company’s Board of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsDirectors.

Observation Rights. In addition to the rights to nominate one or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards The Board of Directors of Borrower shall hold its meetings on a regular basis but in any event shall meet at least quarterly. Unless the Company Obligations shall have been paid in full, then beginning with the six month anniversary of the Termination Date, the Lenders shall have the right to have one representative attend any and all meetings of the Board of Directors and all of its Subsidiaries and their respective committeescommittees (including any adjournments thereof) of each Credit Party either in person or by such other method as shall be allowed under the Bylaws for Directors. The Observer Notwithstanding any implication to the contrary contained herein, no meeting of the Board of Directors of any Credit Party or any committee thereof shall receive be conducted unless such representative of the Lenders shall have been given prior written notice of all such meeting at least two (2) Business Days prior to the date of such meeting. Such representative shall have the right to speak at such meetings of and to make such suggestions and requests during such meetings as such representative deems appropriate, and the Boards applicable Board of Directors shall consider such suggestions and requests in good faith. Except when the attorney-client privilege would be compromised in the reasonable opinion of counsel for the Company and its Subsidiaries and their respective committees at Credit Parties or in order to protect any confidential matters discussed therein with respect to which the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer Lenders may participate in a meaningful manner in discussions of matters brought to the Board of Directors, and shall reasonably be permitted to pose questions and determined by the Board of Directors shall provide complete responses to have a material and substantial conflicting interest, the Credit Parties hereby waive any right to exclude such representative from any such meeting or any right, whether legal, procedural or otherwise, to conduct any such meetings in executive session or otherwise to the questions posedexclusion of such representative. For Exercise of the avoidance of doubtrights granted in this Section 6.01(h) shall not be, the Observer and shall not be deemed to be a member be, participation by any Lender on the Board of Directors of the Borrower or the other Credit Parties. In addition to the foregoing, the representative of the Lenders shall have the right to review any material consent resolutions of the Board of Directors of any Credit Party or any committee thereof prior to the execution thereof, and to make such suggestions and requests with respect thereto as such representative deems appropriate on behalf of the Company and its SubsidiariesLenders. The Company shall reimburse the Observer Borrower will pay for the reasonable out-of-pocket expenses of incurred by the Observer representative in attending such Board and committee meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding or exercising any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsrights hereunder.

Observation Rights. In addition to the rights to nominate one or more directors provided in Section 5.6, for such time (a) For so long as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company RedBird and its Subsidiaries shall extend Observation Rights affiliates “Beneficially Own” (as defined belowby Rule 13d-3 promulgated under the Securities and Exchange Act of 1934, as amended) to Buyers at least 5.0% or their affiliates. For purposes more of the outstanding shares of common stock of the Company in the aggregate or until this SectionAgreement is terminated in accordance with its terms, the term “Observation Rights” RedBird shall mean have the right of Buyers or their affiliates to have a representative designate one non-voting board observer (an the “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees). The Observer shall receive prior written notice of have the right to (i) attend all meetings of the Boards board of Directors directors of the Company (the “Board”) and its Subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors and shall receive all materials and information provided from time to time to the members Audit Committee of the Boards Board (the “Audit Committee”) in a non-voting, observer capacity and (ii) receive copies of Directors of all notices, minutes, consents and other materials that the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may participate in a meaningful manner in discussions of matters brought provides to the Board of Directorsand the Audit Committee in the same manner as such materials are provided to the Board or the Audit Committee, as applicable; provided, that, (x) the Observer shall not be entitled to vote on any matter submitted to the Board nor to offer any motions or resolutions to the Board, and shall the Observer’s presence or absence at any meeting of the Board will not be permitted to pose questions relevant for purposes of determining whether there is a quorum, and (y) the Company may withhold information or materials from the Observer and exclude the Observer from any executive sessions and/or all or any portion of any meeting or discussion of the Board and the Board Audit Committee, in each case of Directors shall provide complete responses this clause (y), if the Company determines in good faith that access to such information and/or materials or attendance at such meeting or portion thereof would be reasonably likely to (A) result in the questions posedwaiver of attorney-client (or other similar) privilege, (B) adversely affect the Company under applicable regulations or laws or be in contravention of any agreement or arrangement with any governmental authority, or (C) result in an actual or potential conflict of interest between the Company, on the one hand, and RedBird, any of its affiliates or the Observer, on the other hand, as determined by the Company in good faith. For the avoidance of doubt, a conflict of interest shall be presumed to exist where the Observer shall not be deemed subject matter relates to be a member of the Board of Directors transaction, proceeding or other matter in which RedBird or any committee of the Company and its Subsidiariesaffiliates are or may be interested parties. The Company shall reimburse provide virtual or telephonic access to any meeting of the Observer Board and the Audit Committee that is held virtually or telephonically, as applicable, for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. In addition Prior to the rights Maturity Date (and thereafter to nominate the extent that the Lender shall not be entitled to designate directors pursuant to a written agreement between Harvard and the Lender), the Lender shall have the right (effective upon the Closing Date) to designate by written notice to Harvard one employee or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% agent of the total issued Lender, who will receive reasonable notice of, and outstanding Common Stockbe entitled to attend, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this Section, the term “Observation Rights” shall mean the right of Buyers or their affiliates to have a representative (an “Observer”) attend as an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Boards Board of Directors of Harvard (the Company and its Subsidiaries and their respective committees "Board of Directors") as a nonvoting observer (the "Observer"). Harvard or the applicable members of the Board of Directors will give the Observer oral or written notice of each meeting of the Board of Directors (whether annual or special) at the same time that and in the same manner as oral or written notice of such meetings is given to the directors and applicable members of the Board of Directors (which notice may be waived by the Observer). Notwithstanding the foregoing, if the Observer attends (or, in the case of a telephonic meeting, listens by telephone to) any such meeting of the Board of Directors, then the Observer shall receive be deemed to have had proper notice of such meeting. Notwithstanding anything contained herein to the contrary, the failure of the Observer to be given notice of a meeting of the Board of Directors pursuant to the immediately preceding two sentences or to attend such meeting shall not in any way affect the authority of the Board of Directors to have or to adopt resolutions at such meeting or the legitimacy of any actions taken by the Board of Directors at such meeting. Subject to the foregoing, Harvard will permit the Observer to attend (or, in the case of a telephonic meeting, to listen by telephone to) each meeting of the Board of Directors as a non-voting observer. Harvard shall provide the Observer all written materials and other information provided from time to time (including copies of meeting minutes) given to the members of the Boards Board of Directors in connection with any such meeting at the same time as such information is delivered to the members of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rulesBoard of Directors and, if the Observer may participate does not attend (or, in the case of a meaningful manner in discussions telephonic meeting, does not listen by telephone to) a meeting of matters brought to the Board of Directors, and shall be permitted to pose questions and Harvard shall, promptly following such meeting of the Board of Directors shall Directors, provide complete responses the written minutes or an oral summary of the meeting from the Secretary of Harvard to the questions posedObserver. For the avoidance of doubt, the Observer shall not be deemed Prior to be a member attending or listening to any meeting of the Board of Directors or obtaining any committee documents or summaries of the Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such proceduresmeetings, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed agree in writing to observe be bound by the confidentiality provisions same duties of this Section 5.7confidentiality, good faith and loyalty as if such Observer were a director of Harvard. If Harvard wishes to take any action by written consent of the Board of Directors in lieu of a meeting, then Harvard shall circulate such written consent to the Observer at the same time it circulates such instrument for signature by the directors, and (B) provided the Observer gives prior shall give prompt written notice of any action taken pursuant thereto to the Company, disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or in accordance with regulatory requirementsObserver.