Common use of Observer Rights Clause in Contracts

Observer Rights. As long as any shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, and the Series B Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall be given copies of all notices, minutes, consents, and other materials that the Company provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided to the Board; provided, however, that such representative shall agree to hold in confidence all information so provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board has determined that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in a conflict of interest or disclosure of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board has determined that such holder is a Competitor.

Observer Rights. As long as any shares The Company shall invite a representative of the Series A Preferred Stock, the Series A-1 Preferred Stock, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, and the Series B Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company each Investor with Observer Rights to attend all meetings of the its Board of Directors in a nonvoting observer capacity and, in this respect, shall be given give each Investor with Observer Rights copies of all notices, minutes, consents, and other materials that the Company it provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided to the Boardits directors; provided, however, that such each representative of an Investor with Observer Rights shall agree to hold in confidence and trust all information so provided; and, provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the Company reserves the right to withhold any information and to exclude such representative any or all representatives from any meeting or portion thereof if the Board has determined Company believes in good faith, upon the advice of outside counsel to the Company, that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could adversely affect or portion thereof is reasonably necessary to preserve the attorney-client privilege between privilege. The representatives must be persons acceptable to a majority of the Board of Directors of the Company. “Investor with Observer Rights” means each of: (a) a designee of New Enterprise Associates 12, Limited Partnership (“NEA”), so long as NEA holds at least twenty-five percent (25%) of the aggregate number of shares of Preferred Stock acquired by it pursuant to the Series A Purchase Agreement dated as of May 29, 2008 by and among the Company and its counsel or result in the other parties named therein (the “Prior Purchase Agreement”) and the Series B Purchase Agreement (on an as-converted to Common Stock basis); (b) a conflict designee of interest or disclosure CMEA Ventures VII, L.P. (“CMEA”), so long as CMEA holds at least twenty-five percent (25%) of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder aggregate number of shares of Preferred Stock acquired by it pursuant to the Series A Preferred Stock, the Series A-1 Preferred Stock, and/or Prior Purchase Agreement and the Series B Purchase Agreement (on an as-converted to Common Stock basis); (c) Xxxxx Xxxxxxx (“Xxxxxxx”) so long as he holds at least twenty-five percent (25%) of the aggregate number of shares of Preferred if Stock acquired by him pursuant to the Board has determined that such holder is a CompetitorPrior Purchase Agreement and the Series B Purchase Agreement (on an as-converted to Common Stock basis); and (d) Xxxx Frechet (“Frechet”) so long as he holds at least twenty-five percent (25%) of the aggregate number of shares of Preferred Stock acquired by him pursuant to the Prior Purchase Agreement and the Series B Purchase Agreement (on an as-converted to Common Stock basis).

Observer Rights. As Subject to the provisions of this Section 8.4, so long as any Xxxxxxx X. Xxxxxx holds at least an aggregate of 2,054,678 shares of the Company's Series A B Preferred Stock, the Series A-1 C Preferred StockStock and Series D Preferred Stock (subject to adjustment for any stock split, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, reverse stock split and the Series B Preferred like), he shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company right to attend all meetings of the Company's Board of Directors (other than Board committee meetings) in a nonvoting observer capacity andcapacity, in this respect, shall be given copies to receive notice of such meetings and to receive all notices, minutes, consents, consents and other materials that materials, financial or otherwise, which the Company provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided its Board of Directors ("Observer Rights"). Subject to the Board; providedprovisions of this Section 8.4, howeverso long as Advantage Capital Missouri Partners I, L.P., Advantage Capital Missouri Partners II, L.P. and their Affiliates hold at least an aggregate of 940,875 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. Subject to the provisions of this Section 8.4, so long as White Pines Limited Partnership I and Pacific Capital, L.P. hold at least an aggregate of 1,104,526 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. The Company may require as a condition precedent to granting Observer Rights under this Section 8.4 that such representative each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided (it being understood that received during such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the meetings or otherwise. The Company also reserves the right not to withhold any provide information and to exclude such representative persons having Observer Rights from any meeting or portion thereof (a) if the Board has determined Company believes upon advice of counsel and with reasonable notice to the persons having Observer Rights that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could by such persons would adversely affect the attorney-client privilege between or the Company and its counsel Board's fiduciary duties, or result (b) to protect confidential or competitively sensitive information. The Observer Rights set forth in this Section 8.4 shall terminate upon the closing of a conflict Qualifying Public Offering, unless terminated sooner pursuant to the terms of interest or disclosure of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board has determined that such holder is a Competitorthis Section 8.4.

Observer Rights. As long as any Aventis Inc. (“Aventis”) continues to own not less than fifty percent (50%) of the shares of the Series A B Preferred StockStock it is purchasing under the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization) (or an equivalent amount of Common Stock issued upon conversion thereof), the Series A-1 Preferred Stock, or the Series B Preferred are outstanding, the holders Company shall invite one representative of a majority of the Series A Preferred, the Series A-1 Preferred, and the Series B Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company Aventis to attend all meetings of the Board of Directors in a nonvoting observer capacity (the “Aventis Observer”). As long as Casdin Partners Master Fund L.P. (“Casdin”) continues to own not less than fifty percent (50%) of the shares of the Series B Preferred Stock it is purchasing under the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization) (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite one representative of Casdin to attend all meetings of the Board of Directors in a nonvoting observer capacity (the “Casdin Observer”). As long as 6 Dimensions Capital L.P. and 6 Dimensions Affiliates Fund, L.P. (together, “6 Dimensions”) continue to own in the aggregate not less than fifty percent (50%) of the shares of the Series B Preferred Stock 6 Dimensions is purchasing under the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization) (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite one representative of 6 Dimensions to attend all meetings of the Board of Directors in a nonvoting observer capacity (the “6 Dimensions Observer”, and, in this respecttogether with the Aventis Observer and the Casdin Observer, the “Board Observers”). The Company shall be given give to each Board Observer copies of all notices, minutes, consents, and other materials that the Company it provides to its directors at the Board, such materials to be made available same time and in the same manner as provided to such representative at or about the time as such materials are provided to the Boarddirectors; provided, however, that such representative each Board Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the Company reserves the right to withhold any information and to exclude such representative a Board Observer from any meeting or portion thereof if the Board has determined that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest or disclosure of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board has determined that such holder is a Competitorinterest.

Observer Rights. As Subject to the provisions of this Section 8.4, so long as any Stepxxx X. Xxxxxx xxxds at least an aggregate of 2,054,678 shares of the Company's Series A B Preferred Stock, the Series A-1 C Preferred StockStock and Series D Preferred Stock (subject to adjustment for any stock split, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, reverse stock split and the Series B Preferred like), he shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company right to attend all meetings of the Company's Board of Directors (other than Board committee meetings) in a nonvoting observer capacity andcapacity, in this respect, shall be given copies to receive notice of such meetings and to receive all notices, minutes, consents, consents and other materials that materials, financial or otherwise, which the Company provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided its Board of Directors ("Observer Rights"). Subject to the Board; providedprovisions of this Section 8.4, howeverso long as Advantage Capital Missouri Partners I, L.P., Advantage Capital Missouri Partners II, L.P. and their Affiliates hold at least an aggregate of 940,875 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. Subject to the provisions of this Section 8.4, so long as White Pines Limited Partnership I and Pacific Capital, L.P. hold at least an aggregate of 1,104,526 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. The Company may require as a condition precedent to granting Observer Rights under this Section 8.4 that such representative each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided (it being understood that received during such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the meetings or otherwise. The Company also reserves the right not to withhold any provide information and to exclude such representative persons having Observer Rights from any meeting or portion thereof (a) if the Board has determined Company believes upon advice of counsel and with reasonable notice to the persons having Observer Rights that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could by such persons would adversely affect the attorney-client privilege between or the Company and its counsel Board's fiduciary duties, or result (b) to protect confidential or competitively sensitive information. The Observer Rights set forth in this Section 8.4 shall terminate upon the closing of a conflict Qualifying Public Offering, unless terminated sooner pursuant to the terms of interest or disclosure of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board has determined that such holder is a Competitorthis Section 8.4.

Observer Rights. As At all times prior to the Series F-1 Conversion (as defined in the Voting Agreement) and for so long as any NBCUniversal Media, LLC (“NBCU”) and its affiliates collectively own not less than 2,000,000 shares of Series F Preferred Stock and/or Series F-1 Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the Series A Preferred Stocklike), the Series A-1 Preferred Stock, or the Series B Preferred are outstanding, the holders Company shall invite a representative of a majority of the Series A Preferred, the Series A-1 Preferred, and the Series B Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company NBCU to attend all meetings of the its Board in a nonvoting observer capacity andcapacity. Following the six (6) month anniversary of the date hereof, for so long as (a) the Series G-1 Conversion (as defined in this respectthe Voting Agreement) has not occurred, (b) NBCU and its affiliates collectively own not less than 2,000,000 shares of Series G Preferred Stock and/or Series G-1 Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and (c) the Board consists of more than six (6) directors, the Company shall be given invite a second representative of NBCU to attend all meetings of its Board in a nonvoting observer capacity. The Company shall deliver to such representative(s) copies of all notices, minutes, consents, consents and other materials that the Company it provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided to the Boardits directors; provided, however, that such representative representative(s) shall agree to hold in confidence and trust and not to use for any purpose other than to monitor its investment, all information so provided; and provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the Company reserves the right to withhold any information and to exclude such representative representative(s) from any meeting or portion thereof if to the Board has determined that such representative is a Competitor and/or if the representative’s extent access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or could result in a conflict of interest interest. Notwithstanding the foregoing, if at any time after the Series F-1 Conversion and/or Series G-1 Conversion, any other stockholder of the Company shall have the right to designate both a director and an observer to the Board, then NBCU’s right to designate one or disclosure of trade secrets; and providedtwo observers, furtheras the case may be, pursuant to this Section 2.6 shall continue in effect notwithstanding that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the F-1 Conversion and/or Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board G-1 Conversion has determined that such holder is a Competitoroccurred.

Observer Rights. As (a) For so long as any the group of purchasers of shares of Series B Preferred Stock of the Company (the “Series A Preferred StockB Shares”) affiliated with KPCB Holdings, Inc. (the Series A-1 Preferred Stock, or “Xxxxxxx Xxxxxxx Investors”) pursuant to the Series B Preferred are outstandingStock Purchase Agreement dated July 13, 2007, as amended (the “Series B Purchase Agreement”), hold, in the aggregate, at least thirty percent (30%) of the aggregate number of Series B Shares (as adjusted for Recapitalizations, as defined in the Certificate) initially issued to the Xxxxxxx Xxxxxxx Investors, the holders of Company shall invite a majority representative of the Series A Preferred, the Series A-1 Preferred, and the Series B Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company Xxxxxxx Xxxxxxx Investors to attend all meetings of the its Board of Directors in a nonvoting observer capacity and, in this respect, shall be given give such representative copies of all notices, minutes, consents, and other materials that the Company it provides to the Board, such materials to be made available to such representative at or about the time as such materials are its directors; provided to the Board; provided, however, that such representative shall agree to hold in confidence all information so provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board has determined Company determines, upon consultation with counsel, as appropriate, that such representative is a Competitor and/or if the representative’s (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to the Xxxxxxx Xxxxxxx Investors or their representative; or (iii) access to such information or attendance at such meeting could result in a material conflict of interest between the Xxxxxxx Xxxxxxx Investors or disclosure of trade secrets; their representative and providedthe Company. The Xxxxxxx Xxxxxxx Investors agree, further, that the Company may instruct such and any representative to withhold (and such representative shall withhold) such information from any holder of shares of the Series A Preferred StockXxxxxxx Xxxxxxx Investors will agree, to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to them or learned by them in connection with their rights hereunder, except to the Series A-1 Preferred Stock, and/or extent otherwise required by law and any other regulatory process to which the Series B Preferred if the Board has determined that such holder is a CompetitorXxxxxxx Xxxxxxx Investors are subject.

Observer Rights. As At all times prior to the Series F-1 Conversion (as defined in the Voting Agreement) and for so long as any NBCUniversal Media, LLC (“NBCU”) and its affiliates collectively own not less than 2,000,000 shares of Series F Preferred Stock and/or Series F-1 Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the Series A Preferred Stocklike), the Series A-1 Preferred Stock, or the Series B Preferred are outstanding, the holders Company shall invite a representative of a majority of the Series A Preferred, the Series A-1 Preferred, and the Series B Preferred shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company NBCU to attend all meetings of the its Board in a nonvoting observer capacity andcapacity. Following the six (6) month anniversary of the date hereof, for so long as (a) the Series G-1 Conversion (as defined in this respectthe Voting Agreement) has not occurred, (b) NBCU and its affiliates collectively own not less than 2,000,000 shares of Series G Preferred Stock and/or Series G-1 Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and (c) the Board consists of more than six (6) directors, the Company shall be given invite a second representative of NBCU to attend all meetings of its Board in a nonvoting observer capacity. The Company shall deliver to such representative(s) copies of all notices, minutes, consents, consents and other materials that the Company it provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided to the Boardits directors; provided, however, that such representative representative(s) shall agree to hold in confidence and trust and not to use for any purpose other than to monitor its investment, all information so provided; and provided (it being understood that such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the Company reserves the right to withhold any information and to exclude such representative representative(s) from any meeting or portion thereof if to the Board has determined that such representative is a Competitor and/or if the representative’s extent access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or could result in a conflict of interest interest. Notwithstanding the foregoing, if at any time after the Series F-1 Conversion and/or Series G-1 Conversion, any other stockholder of the Company shall have the right to designate both a director and an observer to the Board, then NBCU’s right to designate one or disclosure of trade secrets; and providedtwo observers, furtheras the case may be, pursuant to this Section 2.6 shall continue in effect notwithstanding that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the F-1 Conversion and/or Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board G-1 Conversion has determined that such holder is a Competitor.occurred. ​ ​

Observer Rights. As Subject to the provisions of this Section 8.4, so long as any Xxxxxxx X. Xxxxxx holds at least an aggregate of 2,054,678 shares of the Company's Series A B Preferred Stock, the Series A-1 C Preferred StockStock and Series D Preferred Stock (subject to adjustment for any stock split, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, reverse stock split and the Series B Preferred like), he shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company right to attend all meetings of the Company's Board of Directors (other than Board committee meetings) in a nonvoting observer capacity andcapacity, in this respect, shall be given copies to receive notice of such meetings and to receive all notices, minutes, consents, consents and other materials that materials, financial or otherwise, which the Company provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided its Board of Directors ("Observer Rights"). Subject to the Board; providedprovisions of this Section 8.4, howeverso long as Advantage Capital Missouri Partners I, L.P., Advantage Capital Missouri Partners II, L.P. and their Affiliates hold at least an aggregate of 940,875 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. Subject to the provisions of this Section 8.4, so long as White Pines Limited Partnership I and Pacific Capital, L.P. hold at least an aggregate of 1,104,526 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. The Company may require as a condition precedent to granting Observer Rights under this Section 8.4 that such representative each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided (it being understood that received during such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the meetings or otherwise. The Company also reserves the right not to withhold any provide information and to exclude such representative persons having Observer Rights from any meeting or portion thereof (a) if the Board has determined Company believes upon advice of counsel and with reasonable notice to the persons having Observer Rights that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could by such persons would adversely affect the attorney-client privilege between or the Company and its counsel Board's fiduciary duties, or result (b) to protect confidential or competitively sensitive information. The Observer Rights set forth in a conflict of interest or disclosure of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board has determined that such holder is a Competitor.this Section

Observer Rights. As Subject to the provisions of this Section 8.4, so long as any Xxxxxxx X. Xxxxxx holds at least an aggregate of 2,054,678 shares of the Company's Series A B Preferred Stock, the Series A-1 C Preferred StockStock and Series D Preferred Stock (subject to adjustment for any stock split, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, reverse stock split and the Series B Preferred like), he shall have the right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) representative thereof who shall be invited by the Company right to attend all meetings of the Company's Board of Directors (other than Board committee meetings) in a nonvoting observer capacity andcapacity, in this respect, shall be given copies to receive notice of such meetings and to receive all notices, minutes, consents, consents and other materials that materials, financial or otherwise, which the Company provides to the Board, such materials to be made available to such representative at or about the time as such materials are provided its Board of Directors ("OBSERVER RIGHTS"). Subject to the Board; providedprovisions of this Section 8.4, howeverso long as Advantage Capital Missouri Partners I, L.P., Advantage Capital Missouri Partners II, L.P. and their Affiliates hold at least an aggregate of 940,875 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. Subject to the provisions of this Section 8.4, so long as White Pines Limited Partnership I and Pacific Capital, L.P. hold at least an aggregate of 1,104,526 shares the Company's Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (subject to adjustment for any stock split, reverse stock split and the like), they shall have the right to appoint a total of one representative who shall have Observer Rights. The Company may require as a condition precedent to granting Observer Rights under this Section 8.4 that such representative each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided (it being understood that received during such representative shall be entitled to provide such information to the holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred, subject to the confidentiality and the other restrictions set forth in this Agreement); provided, further, that the meetings or otherwise. The Company also reserves the right not to withhold any provide information and to exclude such representative persons having Observer Rights from any meeting or portion thereof (a) if the Board has determined Company believes upon advice of counsel and with reasonable notice to the persons having Observer Rights that such representative is a Competitor and/or if the representative’s access to such information or attendance at such meeting could by such persons would adversely affect the attorney-client privilege between or the Company and its counsel Board's fiduciary duties, or result (b) to protect confidential or competitively sensitive information. The Observer Rights set forth in this Section 8.4 shall terminate upon the closing of a conflict Qualifying Public Offering (or an IPO that is not a Qualifying Public Offering in which all of interest or disclosure of trade secrets; and provided, further, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any holder of shares of Series Preferred are converted into shares of Common Stock pursuant to the Series A Preferred Stock, Restated Certificate) unless terminated sooner pursuant to the Series A-1 Preferred Stock, and/or the Series B Preferred if the Board has determined that such holder is a Competitorterms of this Section 8.4.