Common use of Board Observer Rights Clause in Contracts

Board Observer Rights. Prior to the completion of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") to attend all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members of the Board of Directors, with copies of all notices, minutes, consents, and other materials that it provided to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence and trust all information so provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that the Company reserves the right to withhold any information or to exclude the Observer from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Company.

Board Observer Rights. Prior to the completion of the Initial Offering, for For so long as The Xxxxxxx Xxxxx Groupthe Investors hold, Inc. ("Xxxxxxx Sachs")in the aggregate, together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares Stock (or Series D Stock as adjusted for stock splits and combinations) acquired pursuant to conversion of the Company into or for which such Subject Common Shares are convertible or exchangeable Convertible Notes and the Series C Preferred Stock (or shares of Common Stock into which issuable upon conversion of the Convertible Notes and the Series D Stock are convertedC Preferred Stock) that Xxxxxxx Xxxxx acquires pursuant to held by them as of the date of this Agreement, after taking into account the Redemption Closing (as defined in the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions)Agreement) if the Redemption Closing occurs, the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (Majority Investors will have the "Observer") right to attend have up to two individuals present at all meetings of its the Board and, for so long as Mercato holds at least 10,000 of Directors Series B Preferred Stock (whether in person; telephonic or other) (other than shares of Common Stock issued upon conversion of the Series B Preferred Stock held by Mercato), Mercato will have the right to have one individual present at all meetings of a committee of the Board (each, a “Board Observer” and collectively, the “Board Observers”). The Board Observers will be (a) given notice by the Secretary of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members Company of any meeting of the Board or any committee thereof at the same time as the directors, (b) entitled to be present at all meetings of Directorsthe Board or any committee thereof, with (c) provided copies of all notices, minutes, consentsminutes of Board meetings and Board committee meetings, and (d) provided copies of any reports, minutes or other materials that it provided documents distributed to such members (other than in meetings of a committee of the Board of Directors, unless other board observers or any committee thereof at the time such materials are provided such materials)given to the Board; provided, however, that before any Confidential Information is distributed to any Board Observer pursuant to this Section 6.2, such Board Observer must execute a customary confidentiality agreement. If the Board or any committee thereof determines in good faith that exclusion of a Board Observer agrees to hold in confidence and trust all information so provided to it from any meeting, or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that the Company reserves the right to withhold withholding of any information or materials from a Board Observer, is reasonably necessary in order to exclude the Observer from any meeting or portion thereof if (i) access to such avoid a conflict of interest between the Company or any Subsidiary, on one hand, and the Board Observer, on the other hand, (ii) preserve trade secrets or other confidential or proprietary information of the Company or attendance at such meeting could adversely affect any Subsidiary, or (iii) preserve the attorney-client privilege between of the Company and its counsel; (ii) access or any Subsidiary, then the Company will have the right to exclude the Board Observer only from those portions of any such meeting, or withhold only those portions of information or attendance at such meeting could result in disclosure materials from a Board Observer, that is reasonably necessary to protect the Company’s or Subsidiary’s interest. The parties agree that the Board Observer of trade secrets to Xxxxxxx Sachs Mercato must be an individual who the Majority Investors conclude does not engage, directly or its representative; or (iii) access to such information or attendance at such meeting could result indirectly, in a conflict of interest between Xxxxxxx Xxxxx or its representative and business that competes with the Company.

Board Observer Rights. Prior (a) Upon the Technology Access Fee Closing, Intrexon will be entitled to maintain one person who is an employee, officer, or director of Intrexon who is appointed by Company as an observer to the completion board of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock directors of the Company into (the “Observer”). If Intrexon does not already have an Observer on the board of directors of Company at or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant prior to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions)Technology Access Fee Closing, the Company shall permit a designee cause the President of Xxxxxxx Sachs or its affiliates (Intrexon’s Human Therapeutics Division to be appointed as Observer. Intrexon may, upon written notice to Company, change the "identity of the Observer") , and the right of Intrexon to maintain one Observer on the board of directors of the Company shall continue until the Channel Agreement is terminated. The Observer shall be entitled to attend all meetings of its Board the Company’s board of Directors directors and committees thereof as an observer (whether in person; telephonic or otherwith no power to vote on any matter before the board of directors) (other than meetings and shall be entitled to receive copies of a committee of the Board of Directors, unless other board observers are permitted all materials and receive all briefings provided to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members of the Board Company’s board of Directors, with copies of all notices, minutes, consents, and other materials that it directors; provided to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees enters into a confidentiality agreement with the Company in a form reasonably satisfactory to hold in confidence and trust all information so provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that the Company reserves the right to withhold any information or to (i) exclude the Observer from access to any meeting board of directors’ materials or meetings or portion thereof if (i) access the Company believes that such exclusion is reasonably necessary to such information or attendance at such meeting could adversely affect preserve the attorney-client privilege between privilege, to protect highly confidential information or for other similar reasons, or if the Company and its counsel; believes in good faith that the Observer has a conflict of interest, (ii) at the discretion of the applicable committee, exclude the Observer from access to such information any meeting materials or attendance at such meeting could result in disclosure meetings (or portion thereof) of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict the nominating committee of interest between Xxxxxxx Xxxxx or its representative and the Company’s board of directors, compensation committee of the Company’s board of directors, audit committee of the Company’s board of directors and any other committee of the Company’s board of directors performing similar functions or which the listing rules of the NYSE Amex require to have such discretion.

Board Observer Rights. Prior to (a) Effective immediately following the completion of the Initial Offering, Closing and for so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with the Purchaser and its affiliates, holds (and continues to hold) at least 25Affiliates collectively Beneficially Own 50% or more of the Subject Common Shares (or Series D Stock aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company into or Common Stock, Purchaser and its Affiliates shall be deemed to continue to own such portion of the Note for which such Subject Common Shares are convertible or exchangeable or purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock into which issued upon such conversion) (such condition, the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions“Ownership Condition”), the Company Purchaser shall permit have the right to designate a designee of Xxxxxxx Sachs or its affiliates (non-voting observer to the "Observer") to attend all meetings of its Board of Directors (whether in person; telephonic the “Purchaser Observer”), which such person must be an employee of the Purchaser or other) (other than its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings of a committee of the Board of DirectorsDirectors and any committee thereof, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, and the Company shall provide the Observer, concurrently with the members of the Board of Directors, Purchaser Observer with copies of all notices, minutes, consents, consents and other material in connection therewith at the same time as such materials that it provided are distributed to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are Directors or the applicable committee thereof; provided such materials); provided, however, that (i) the Purchaser shall cause the Purchaser Observer agrees to hold in confidence comply with Section 4.08 and trust all information so provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that (ii) the Company reserves and the Board of Directors shall have the right to withhold any information or and to exclude the Purchaser Observer from any meeting or portion thereof if thereof, in each case, solely to the extent that (iA) access to such information or attendance at such meeting could adversely affect relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company, is advisable or necessary to protect the attorney-client privilege between the Company and its counsel; (ii) access counsel or to such information prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any matters presented to the Board of Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, provided that the Company shall reimburse the Purchaser Observer for its reasonable and documented out-of-pocket expenses incurred in connection with travel to or from and attendance at such each meeting could result of the Board of Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All obligations of the Company pursuant to this Section 4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in disclosure of trade secrets each case upon the Purchaser ceasing to Xxxxxxx Sachs or its representative; or (iii) access have the right to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and designate the CompanyPurchaser Observer pursuant to this Section 4.06(a).

Board Observer Rights. Prior to the completion of the Initial Offering, for so So long as The Xxxxxxx Xxxxx GroupAlta Partners VIII, Inc. LP or an Affiliate thereof ("Xxxxxxx Sachs"), together with its affiliates, “Alta”) holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or 250,000 shares of Common Preferred Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications reorganizations and similar corporate actions)the like) the Company shall allow Alta to designate one (1) observer (the “Alta Observer”) to attend all regular meetings of the Board of Directors and committees thereof in a nonvoting capacity. So long as RiverVest Venture Fund II, L.P. or an Affiliate thereof (“RiverVest”) holds at least 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the like) the Company shall allow RiverVest to designate one (1) observer (the “RiverVest Observer”) to attend all regular meetings of the Board of Directors and committees thereof in a nonvoting capacity. So long as Roche Finance Ltd or an Affiliate thereof (“Roche”) holds at least 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the like) the Company shall allow Roche to designate one (1) observer (the “Roche Observer”) to attend all regular meetings of the Board of Directors and committees thereof in a nonvoting capacity. In connection with the observer rights set forth in this Section 3.9, the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (give the "Observer") to attend all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Alta Observer, concurrently with the members of RiverVest Observer and the Board of Directors, with Roche Observer copies of all notices, minutes, consents, consents and other materials that it provided materials, financial or otherwise, which the Company provides to such members (other than in meetings of a committee of the Board of Directors, all of which information shall be deemed by the recipient thereof to be confidential information of the Company unless other board observers are provided such materials)information is otherwise confirmed in writing by the Company to such recipient to not be confidential to the Company; provided, however, that the Observer agrees to hold in confidence and trust all information so provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, however that the Company reserves the right to withhold any information or to exclude the Alta Observer, and/or the RiverVest Observer and/or the Roche Observer from access to any material or meeting or portion thereof if the Board of Directors determines (ia) access to by a decision in good faith by at least a majority of the then-serving Directors, and upon advice from its legal counsel, that there is a substantial risk that such information or attendance at individual observer’s presence during such portion of the relevant meeting could adversely affect result in the Company’s loss of attorney-client privilege between with respect to such matter or documents, (b) by a decision in good faith by at least a majority of the then-serving Directors, after reasonable consultation as to such matter by the Chief Executive Officer with such observer, reasonably believes that such specified matter relates directly and substantially to any matter in which both the Company and the observer entity have a material business or financial interest (as to such observer entity, other than solely by reason of the observer entity’s interest as a stockholder of the Company) or such matter creates a conflict of interest for such observer entity, or (c) by a decision in good faith by at least a majority of the then-serving Directors, after consultation by the Chief Executive Officer with the Company’s legal counsel, that such specified matter involves confidential or sensitive information related to the business of the Company the disclosure of which by the Company to such observer entity would or could be adverse to the interests of the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Companystockholders.

Board Observer Rights. Prior to the completion of the Initial Offering, for For so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% 500,000 shares of the Subject Common Shares (or Series D --------------------- Preferred Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions)remain outstanding, the Company shall permit a designee Attractor Investment Management Inc. ("Attractor") to designate one observer who is an --------- employee of Xxxxxxx Sachs or its affiliates Attractor (the "Series D Observer") ), who initially shall be Xxxxxx ----------------- Xxxxxxx, to attend be present at all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Company's Board of Directors, unless other board observers are permitted to attend such meetings) in or any committee thereof which represents at least a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with majority of the members of the Board of Directors, with copies and to give the Series D Observer notice of all notices, minutes, consents, and other materials that it such meetings at the same time notice is provided or delivered to such members (other than in meetings of a committee of the Board of Directors, unless other board observers . Board of Directors' materials that are provided such materials)sent to the directors prior to a meeting of the Board of Directors shall be sent simultaneously by the Company to the Series D Observer; provided, however, that the Company may -------- ------- exclude from the materials sent to the Series D Observer agrees any materials that the Company believes relate directly and substantially to hold any matter in confidence and trust all information so provided which Attractor has a business or financial interest. In addition, if the Company receives advice from legal counsel that discussing a specified matter in the presence of a person who is not a member of the Board of Directors, or sending specified Board of Directors' materials to it or learned by it in connection with its rights hereunder; it being understood and agreed thatsuch person, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment might result in the Company; and provided, further, that the Company reserves the right to withhold any information or to exclude the Observer from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the 's loss of attorney-client privilege between with respect to a specified matter, the Company and may exclude the Series D Observer from a meeting or exclude such Board of Directors' materials from the materials sent to the Series D Observer, or both, provided that the Company shall promptly notify the Series D Observer that any exclusion from a meeting or materials distributed to directors was effected to preserve its counsel; (ii) access to such information attorney-client privilege or attendance at such meeting could result in disclosure avoid conflicts of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a interest. Insofar as any possibility of conflict of interest between Xxxxxxx Xxxxx or may arise with respect to the Series D Observer, all duties and obligations that a member of the Board of Directors may have by virtue of the law with respect to such conflict of interest shall apply to the Series D Observer. Attractor and each of its representative officers, directors, employees and agents, including the CompanySeries D Observer, agrees to maintain the confidentiality of any information of the Company obtained by them.

Board Observer Rights. Prior So long as both (i) the Investor continues to the completion own at least ninety percent (90%) of the Initial Offering, for so long shares of Series A Preferred Stock owned by the Investor as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares date of this Agreement (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or calculated to include shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant issued to the Purchase Agreement (Investor upon conversion of such shares of Common Stock, so long as the Investor continues to own such shares of Common Stock, and appropriately adjusted for to reflect any stock splits, subdivisions stock dividends, combinations and combinations, reclassifications other recapitalizations) and similar corporate actions(ii) the supply agreement between the Company and the Investor has not expired or been terminated (other than (i) a termination thereof by the Company that constitutes a breach of such agreement or (ii) a termination thereof by the Investor due to a material breach thereunder by the Company), the Company Investor shall permit a designee of Xxxxxxx Sachs or its affiliates be entitled to designate one individual (the "ObserverOBSERVER") who will be entitled to receive notice of and to attend all meetings of its Board of Directors (whether in personthe Board, as an observer without any right to vote or provide consent as a director with respect to any matter; telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members of the Board of Directors, with copies of all notices, minutes, consents, and other materials that it provided to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials); provided, howeverPROVIDED, that the foregoing Board observer rights will terminate upon the mutual agreement of the Investor and the Company. The identity of the Observer agrees will be subject to the reasonable approval of the Company, PROVIDED, HOWEVER, that the initial Observer shall be that person named on SCHEDULE 4.4 attached hereto. The Observer will hold in confidence and trust all any confidential information so provided to it or learned by it received in connection with its rights hereunder; it being understood his role as a Board Observer. In addition, information provided to the Observer, and agreed thatthe Observer's right to attend particular meetings of the Board, notwithstanding the foregoingwill be subject to reduction or elimination, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and providedsole good faith judgment of the Board, further, in the event that the Company reserves the right to withhold any information or to exclude the Observer from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such meetings will or might contain or reflect competitively sensitive information or attendance at such meeting could result in disclosure of trade secrets matters that give rise to Xxxxxxx Sachs an actual or its representative; or (iii) access to such information or attendance at such meeting could result in a potential conflict of interest between Xxxxxxx Xxxxx or its representative and the Companyinterest. The Board observation rights provided in this Section 4.4 shall survive a Qualified IPO.

Board Observer Rights. Prior to the completion of the Initial Offering, for For so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with the GSK Investor or its affiliates, holds (and continues to hold) Affiliates own at least 2550% of the Subject Common Shares (or Series D Stock of set forth opposite the GSK Investor’s name on Exhibit A hereto, the GSK Investor may from time to time by written notice to the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converteddesignate one (1) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (person as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") non-voting observer to attend all meetings of its the Board of Directors of the Company (whether the “Observer”), which Observer may be removed and replaced at any time by the GSK Investor. During any period in person; telephonic or otherwhich the GSK Investor has so designated an Observer, the Company shall: (a) (other than provide the Observer notice of all regular meetings and all special meetings of a committee the Board of Directors in the same manner and at the same time notice is provided to members of the Board of Directors provided that the GSK Investor acknowledges that special meetings of the Board of Directors may be held with short notice from time to time depending on the needs of the Company and the unavailability of the Observer to attend any such meetings shall not affect the scheduling and/or proceeding of any such special meeting of the Board of Directors, unless other board observers are permitted ; (b) permit the Observer to attend such meetings as an observer (either in person or by telephone, as applicable, and with respect to in person meetings) in a nonvoting observer capacity and. in this respect, shall provide upon request by the Observer, concurrently by telephone) provided that the Observer may be required by the Board of Directors to temporarily leave a meeting of the Board of Directors (i) if the presence of the Observer at such time would reasonably be expected to prevent the Company from asserting the attorney-client or attorney work product privilege with respect to matters discussed before the Board of Directors at such time or (ii) if matters will be discussed or decided relating to transactions in which the GSK Investor or any Affiliate thereof or the Observer has a material direct or indirect interest; and (c) provide to the Observer a copy of all materials made available by the Company to the Board of Directors prior to or at such meetings or otherwise (provided that to the extent that the Company determines that the GSK Investor, its Affiliates or the Observer have a conflict of interest with respect to the subject matter of any such materials or such provision would reasonably be expected to prevent the Company from asserting the attorney-client or attorney work product privilege, the Company may redact such information from the materials) contemporaneously with delivery to the members of the Board of Directors, with copies as applicable. The GSK Investor acknowledges and agrees that upon exercise of all noticesits rights under this Section 6.7, minutes, consents, and other materials that it the GSK Investor may receive material non-public “inside information” of the Company or its Subsidiaries provided to such the Observer either at any meeting of the Board of Directors that the Observer attends or furnished to the Observer pursuant to this Section 6.7 as material distributed to the members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials); provided, however, that . The GSK Investor hereby agrees to comply with all applicable securities Laws with respect to any material non-public information obtained by the Observer agrees pursuant to hold the rights granted to the GSK Investor under this Section 6.7. The right of the GSK Investor to designate an Observer under this Section 6.7 shall not in confidence and trust all information so provided to it any way be limited, restricted or learned prohibited by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, fact that an Observer is not appointed as of the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that the Company reserves the right to withhold any information or to exclude the Observer from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Companydate hereof.

Board Observer Rights. Prior From and after three (3) Business Days following Agent notifying the Loan Parties of the name of an independent director/manager candidate acceptable to the completion of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. Agent ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant including any replacement candidate acceptable to the Purchase Agreement (as adjusted for stock splitsAgent, subdivisions if applicable, the “Acceptable Independent Manager,” and combinationssuch deadline, reclassifications and similar corporate actionsthe “Board Observer Deadline”), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates Acceptable Independent Manager shall: (the "Observer"i) be permitted to attend all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee each meeting of the Board of DirectorsManagers or similar governing body of Holdings and each other Loan Party that is governed by a Governing Body from time to time (collectively, unless the “Board-Governed Entities”) and each committee and subcommittee thereof (including, without limitation, any special committee and any informal “Executive Committee” of officers and Managers) (such Boards of Managers or other governing bodies, and all such committees and subcommittees, collectively, the “Governing Bodies”), in each case as a non-voting board observers are permitted observer; (ii) receive notice from the Governing Bodies of the time and place of each meeting of the Governing Bodies in the same manner and at the same time as notice is given to attend the other members of such meetingsGoverning Bodies, which notice shall to the extent practicable be given at least two (2) in a nonvoting observer capacity and. in this respectBusiness Days prior to any such meeting, shall provide (c) receive copies of all reports, documents, materials and information (collectively, the Observer, concurrently with “Meeting Materials”) provided to the members of the Board Governing Bodies of Directorseach Board-Governed Entity at the same time and in the same manner as are provided to the other members of such Governing Bodies (whether disseminated in writing, with copies of all noticesorally, minutes, consentsby email or otherwise), and other materials that it provided to such members (other than in meetings of a committee of d) be promptly reimbursed for all reasonable and documented out-of-pocket costs and expenses incurred by the Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence and trust all information so provided to it or learned by it Acceptable Independent Manager in connection with its rights hereunderhis or her board observer work. The Acceptable Independent Manager shall have a duty of confidentiality to each Loan Party comparable to such duty of a director or manager, as applicable, of each Loan Party; it being understood and agreed that, notwithstanding provided that the foregoing, the Observer Acceptable Independent Manager shall be permitted to use disclose all Meeting Materials and other information discussed in meetings of the Governing Bodies to the Agent, Lenders and their advisors subject to the confidentiality provisions of the Credit Agreement. Notwithstanding the foregoing, each Loan Party shall be permitted to withhold or disclose redact any Meeting Materials, and to exclude the Acceptable Independent Manager from any part of any meeting of any Governing Body, in each case solely to the extent that the Loan Parties reasonably believe, upon advise of counsel (including internal counsel), that withholding such information is necessary to Xxxxxxx Xxxxx and its affiliates preserve attorney-client privilege, avoid an actual conflict of interest arising in connection with managing its investment in any discussion of matters being negotiated with the Company; Agent and providedLenders, further, that the Company reserves the right or is otherwise not permitted to withhold be so shared by any information or to exclude the Observer from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Companyapplicable Governmental Authority.

Board Observer Rights. Prior (a) The Trust agrees that subject to the completion of provisions set forth herein, and the Initial OfferingObserver Protocol, for so long as The Xxxxxxx Xxxxx GroupObserver may attend, Inc. ("Xxxxxxx Sachs")in a non-voting observer capacity, together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") to attend all meetings of its the Board and, subject to the immediately following sentence, any and all Committees for the purposes of Directors permitting Observer to have current information with respect to the affairs of the Trust and the actions taken by the Board and for the Observer to provide input and advice with respect thereto (whether the “Approved Purposes”). The Observer may attend Committee meetings only with the consent of such Committee’s chair, such consent not to be unreasonably withheld or delayed, provided however, if such Committee is vested with authority to bind the Trust pursuant to Section 6.8 of the LTA, the Observer shall have the right to attend such Committee’s meetings as if it were a Board meeting (subject to the provisions of Section 1(c)). Observer shall have the right to be heard at any such Board or Committee meeting and the Board will consider in person; telephonic or othergood faith recommendations made by the Observer, but in no event shall Observer: (i) (other than meetings of be deemed to be a committee member of the Board of Directorsor such Committees; or (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Trust to take, unless other board observers are permitted or not to attend such meetings) in a nonvoting observer capacity andtake, any action. in this respect, shall provide the Observer, Observer will be provided (concurrently with delivery to the members Liquidating Trustees of the Board of Directors, with Trust and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that it are provided to such members the Board (other than in meetings drafts of a committee of the Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence and trust all information so minutes which will not be provided to it or learned by it in connection Observer) with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted respect to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that the Company reserves the right to withhold any information or to exclude the Observer from any a meeting or portion thereof if any written consent in lieu of meeting (i) access except to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access extent Observer has been excluded therefrom pursuant to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the CompanySection 1(c).

Board Observer Rights. Prior At all times while this Agreement is in effect that (a) the Purchaser Beneficially Owns at least six percent (6%) of the outstanding Capital Stock of the Company, but less than ten percent (10%) of the outstanding Capital Stock of the Company, in each case calculated on a fully diluted basis using the treasury method of accounting, and (b) other than any Transfer made pursuant to Section 7(b)(iv) of the Purchase Agreement, has not transferred any shares of Capital Stock issued to Purchaser upon exercise of the Option to any Person that is not a Permitted Transferee or to any Prohibited Assignee, Purchaser shall have the right to designate one observer to the completion Board of the Initial OfferingDirectors, for so long as The Xxxxxxx Xxxxx Groupsuch observer is not an employee or non-independent director of Purchaser or any of its subsidiaries. Such observer’s attendance shall be limited, Inc. ("Xxxxxxx Sachs")in their nonvoting observer capacity, together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") to attend all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members excluding all executive sessions and committee meetings of the Board of Directors, with . Such observer shall receive copies of all notices, minutes, consents, consents and other materials with respect to meetings that it provided such observer is entitled to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials)attend; provided, however, that (i) the Observer agrees observer shall not be entitled to vote on any matter submitted to the Board of Directors or any of its committees nor to offer any motions or resolutions to the Board of Directors or such committees; (ii) such observer shall agree to hold in confidence and trust all information so provided; provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose that such observer may share such information to Xxxxxxx Xxxxx with Cronos and its affiliates in connection with managing its investment in the CompanyRepresentatives; and provided, further, (iii) that the Company reserves the right to withhold any information or and to exclude the Observer such observer from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect would reasonably be expected (in the Company’s reasonable judgment) to result in (A) a violation of applicable Law, (B) the disclosure of any trade secrets in a manner that would result in any such trade secrets no longer being protected under applicable Law following such disclosure, (C) a waiver of the protection of any attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; protection or (iiiD) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Companyinterest.

Board Observer Rights. Prior The Loan Parties shall allow one representative designated by, from time to time, in writing by the completion of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") Required Lenders to attend and participate solely as a non-voting observer in all meetings of its Board the board of Directors directors (whether in person; telephonic or otherother similar body) (other than meetings of a and any committee of the board of directors (or other similar body) of the Loan Parties (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the obligation of Directors, unless other board observers are permitted the Loan Parties to attend such meetings) in permit a nonvoting observer capacity and. Board Observer as set forth in this respectSection 6.18 shall terminate automatically if the Lenders as of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shall, or shall provide cause its Subsidiary to, as the Observercase may be, concurrently with (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the members of the board of directors (or 107 other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of Directorsthe board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary at the same time and in the same manner furnished to such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (v) cause regularly-scheduled Board Meetings of the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all notices, minutes, consents, and written consents duly passed by the board of directors (or other materials that it provided to such members (other than in meetings of a similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary. Xxxxxxxx shall reimburse the Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence for all reasonable and trust all information so provided to it or learned by it documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. Each Loan Party shall, and shall cause its rights hereunder; it being understood and agreed Subsidiaries to, indemnify the Board Observer solely in its capacity as the Board Observer (provided that, notwithstanding the foregoing, such indemnity shall not be available to the extent that any losses, damages, claims, liabilities and expenses resulted from (x) the gross negligence, bad faith or willful misconduct of the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of any act or omission of the Borrower or any of its Affiliates or (z) the material breach by the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the minutes, the written consents and all non-public information delivered to the Board Observer pursuant to this Section 6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, shall be permitted subject to use or the confidentiality provisions of Section 10.16, except that the Board Observer may disclose such information and materials to Xxxxxxx Xxxxx the Lenders and its affiliates their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with managing its investment in the Company; and provided, further, transactions contemplated hereby (it being understood that the Company reserves Persons to whom such disclosure is made will be informed of the right confidential nature of such Information and instructed to withhold any information or keep such Information confidential). Notwithstanding the forgoing, the Borrower shall be entitled to exclude the Board Observer from any portion of any meeting or from receiving any portion thereof of the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) access to such information affect the attorney/client or attendance at such meeting could similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the attorney-client privilege between the Company and Borrower or any of its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or Subsidiaries under applicable Law, (iii) access conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such information restriction exists or attendance at such meeting could result has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest between Xxxxxxx Xxxxx interest, including as to any discussion and/or materials relating to (I) an actual or its representative potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the Companyother Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliates.

Board Observer Rights. Prior From the date hereof until the first such time that it becomes known to the completion of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), Company that an Observer Shareholder together with its affiliates, holds (and continues Permitted Transferees collectively cease to hold) , beneficially or of record, and have the power to vote or direct the voting of, at least 25% of the Subject Common Shares (or Series D Stock of such Observer Shareholder’s Original Percentage Threshold, the Company into or for which agrees that such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which Observer Shareholder shall have the Series D Stock are convertedright to designate one (1) that Xxxxxxx Xxxxx acquires Board observer (an “Observer”). Whenever an Observer Shareholder shall have the right to designate an Observer pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions)preceding sentence, the Company shall permit a designee (a) provide such Observer, as, if and when distributed to the non-management Directors, (i) copies of Xxxxxxx Sachs or its affiliates (all documents distributed to the "Observer") to attend Board, including notice of all meetings of its the Board, all written consents executed by the Board of Directors (whether in person; telephonic or other) (other than meetings of a committee and all materials prepared for consideration at any meeting of the Board and (ii) copies of Directors, unless other board observers are permitted the minutes related to each meeting of the Board; and (b) invite such Observer to attend such meetings) in a nonvoting observer capacity and. in this respectand reasonably participate, shall provide the Observerbut not vote, concurrently with the members at all meetings of the Board of Directors(whether such meetings are held in person, with copies of all notices, minutes, consents, and other materials that it provided to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materialstelephonically or otherwise); provided, however, that the Company reserves the right to exclude any Observer agrees from any meeting or portion thereof, and to withhold any such materials, if such exclusion or withholding is necessary or advisable to preserve attorney-client, work product or similar privilege or to comply with the terms and conditions of confidentiality agreements with third parties or applicable Law; provided, further, that, as a condition to the Company’s obligations under this sentence, such Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided Company Confidential Information. Subject to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoingfollowing sentence, the Company agrees and acknowledges that any Observer may share Company Confidential Information with the Observer Shareholder that designated such Observer, but only upon such Observer Shareholder’s request. Notwithstanding the preceding sentence, prior to receiving any Company Confidential Information, an Observer Shareholder shall be permitted enter into a customary non-disclosure agreement with the Company, pursuant to which such Observer Shareholder agrees not to disclose or use for any purpose (other than in relation to its or disclose such information to Xxxxxxx Xxxxx and one or more of its affiliates in connection with managing its Affiliates’ investment in the Company; and ) any such Company Confidential Information without the prior written consent of the Board, except that Company Confidential Information may be disclosed (i) if required by applicable law, regulation, legal process or pursuant to any request by any legal, regulatory, self-regulatory or government body (provided, furtherthat, other than in connection with a routine examination, audit or inspection by any regulatory, supervisory or similar body or authority having or claiming jurisdiction over the Observer Shareholder or one or more of its Affiliates, prior to making such disclosure or, if not practicable in advance, as promptly as practicable thereafter, and to the extent legally permissible, such Observer Shareholder shall notify the Company in writing so that the Company reserves the right to withhold any information may seek a protective order or to exclude the Observer from any meeting or portion thereof if (iother appropriate remedy) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at Observer Shareholder’s Advisors on a “need to know basis” (provided, that such meeting could result in disclosure of trade secrets Advisors agree to Xxxxxxx Sachs or its representative; or (iii) access keep such Company Confidential Information confidential and to limit their use thereof to such information Observer Shareholder’s or attendance at such meeting could result one or more of its Affiliates’ investment in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Company).

Board Observer Rights. Prior to the completion of the Initial Offering, for For so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, an Investor or subsequent holder of Convertible Securities holds (and continues or is deemed to hold) hold at least 25% of the Subject Common Shares One Million Five Hundred Thousand (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or 1,500,000) shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant Registrable Securities (subject to the Purchase Agreement (as adjusted adjustment for stock splits, subdivisions reverse stock splits, stock dividends and combinations, reclassifications and other similar corporate actionstransactions with respect to such shares), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates allow one representative designated by such Investor (the "“Observer"”) to attend all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members of the Board of Directors, with copies of all notices, minutes, consents, and other materials that it provided to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials)non-voting capacity; provided, however, that no Investor or subsequent holder of Convertible Securities shall be entitled to designate an Observer if such holder or an Affiliate of such holder is entitled to nominate a director to the Board pursuant to the Company’s Amended and Restated Voting Agreement, dated as of the date hereof. The Company shall provide the Observer agrees with copies of all materials that are provided by the Company to hold in confidence and trust all information so provided its directors; provided, however, that a majority of the members of the Board shall be entitled to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, recuse the Observer shall be permitted from portions of any Board meeting and to use redact portions of any Board or disclose Board committee materials delivered to the Observer where and to the extent that such information to Xxxxxxx Xxxxx and its affiliates majority determines, in connection with managing its investment good faith that (i) such recusal is reasonably necessary, in the opinion of counsel to the Company, to preserve attorney-client privilege with respect to a material matter, (ii) there exists, with respect to any deliberation or Board materials, an actual or potential conflict of interest between the Investor who has appointed such Observer and the Company or (iii) the presence of the Observer would otherwise be materially injurious to the Company in such circumstances; and provided, further, that such Investor’s right to appoint an Observer to the Board shall automatically expire upon the effectiveness of the registration statement for the Company’s Qualified Public Offering. Any Observer will be subject to the confidentiality provisions set forth in Section 2.6. The Observer shall receive no compensation from the Company reserves the right to withhold for service as an Observer and shall not be reimbursed for any information or to exclude expenses incurred by the Observer from in connection with attendance of any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect of the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the CompanyBoard.

Board Observer Rights. Prior to the completion of the Initial Offering, for For so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with the Strategic Investor or its affiliates, holds (and continues to hold) affiliates hold in the aggregate at least 255% of the Subject outstanding shares of Common Shares (Stock, or Series D securities convertible into shares of Common Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinationsstock dividends, reclassifications recapitalizations and similar corporate actions)events) that the Strategic Investor purchased pursuant to this Agreement, the Strategic Investor shall have the right, but not the obligation to from time to time require, in writing, the Company shall to permit a designee representative of Xxxxxxx Sachs or its affiliates the Strategic Investor (the "Observer") to attend all meetings of its Board of Directors (whether in person; , telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) and any committees thereof in a nonvoting observer capacity andcapacity. in Any Observer must be approved by the written consent of the Company's Nominating, Compensation and Corporate Governance Committee and such consent shall not be unreasonably withheld. For the purpose of this respectcalculation, the Strategic Investor shall be deemed to hold the maximum number of shares of Common Stock which could be acquired by the Strategic Investor upon conversion of the convertible securities purchased pursuant to this Agreement notwithstanding any limitations on conversion of such convertible securities contained therein. During such time as the Strategic Investor elects to appoint an Observer pursuant to the provisions set forth herein, the Company shall provide the Observer, concurrently with the members of the Board of Directors, with copies of all notices, minutes, consents, and other materials that it provided provides to such members (other than in meetings of a committee of the Board of Directors, unless other board observers are provided such materials)members; provided, however, the Board of Directors shall have the right, in its sole discretion, to meet in confidential executive session, which the Strategic Investor's representative will not be entitled to attend, if the Board of Directors shall determine in good faith, based upon the advice of counsel, that such confidential executive session is (i) necessary to preserve attorney-client privilege, (ii) in the best interests of the Company and where the Strategic Investor has a direct interest in the subject matter under discussion that is divergent from the interests of the Company, or (iii) necessary to discharge the directors' fiduciary duties; and provided further that the Observer agrees to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided to it or learned by it provided. The Company shall notify the Strategic Investor, in connection with its rights hereunder; it being understood advance, of such confidential executive session and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that the Company reserves the right to withhold any information or to exclude the Observer from any meeting or portion thereof if (i) access to such information or attendance at specific rationale for making such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and the Companyconfidential.

Board Observer Rights. Prior to the completion of the Initial Offering, for so So long as The Xxxxxxx Xxxxx Groupany Loan or other Obligations are outstanding, Inc. the Borrower shall hold meetings of its board of directors ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to holdeither in-person or by telephone) at least 25% once every calendar quarter. The Agent and each Lender shall be notified in writing of the Subject Common Shares date and time for each board meeting by notice sent (or Series D Stock of which may be oral notice) at the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant same time as notice thereof is sent to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") to attend all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Board of Directors, unless other board observers are permitted to attend such meetings) in a nonvoting observer capacity and. in this respect, shall provide the Observer, concurrently with the members of the Board Borrower's board of Directors, with copies of all notices, minutes, consentsdirectors, and shall receive all reports and other board materials that it are provided in writing or electronically (or otherwise made available) to such members (the board members, except any that are subject to attorney-client or other than in meetings of a committee privilege of the Board Borrower, any Subsidiary or any of Directorstheir officers or directors. The Agent and the Lenders, unless other collectively, shall have the right to have one (1) designated representative, at the Borrower's reasonable expense and subject to reasonable and customary confidentiality obligations, attend such board observers are provided such materials)meetings as an observer; provided, however, that the Observer agrees such observer shall not constitute a member of such board and shall not be entitled to hold in confidence and trust all information so provided vote on any matters presented to it or learned by it in connection with its rights hereundersuch board; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the Company; and provided, further, that such observer may be required to leave such meetings (or may receive certain materials with redacted portions) to the Company reserves extent a legal privilege arises in connection with the right issues being discussed (or described in such materials), in each case, that reasonably would be expected to withhold any information be lost if the observer were not to leave or were to exclude receive such redacted information, as applicable. In witness whereof, the Observer from any meeting or portion thereof if parties hereto have caused this Agreement to be duly executed and delivered by their respective representatives thereunto duly authorized as of the date first written above. BORROWER: EPV SOLAR, INC. By: Name: Title: AGENT: PATRIARCH PARTNERS AGENCY SERVICES, LLC, as the Agent By: Xxxx Xxxxxx Manager LENDERS: c/o Patriarch Partners XIV, LLC 32 Avenue of the Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (i000) access to such information or attendance at such meeting could adversely affect the attorney000-client privilege between the Company and 0000 Facsimile: (000) 000-0000 Attention: Loan Administration/EPV Solar XXXXX XX 2005-1, LIMITED By: Patriarch Partners XIV, LLC, its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or (iii) access to such information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Collateral Manager By: Xxxx Xxxxxx Manager SCHEDULE 2.1 COMMITMENTS Term Loan Commitments Term Loan Lender Term Loan Commitment Xxxxx or its representative and the Company.XX 2005–1, Limited $4,000,000

Board Observer Rights. Prior The Loan Parties shall allow one representative designated by, from time to time, in writing by the completion of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. ("Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) at least 25% of the Subject Common Shares (or Series D Stock of the Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) that Xxxxxxx Xxxxx acquires pursuant to the Purchase Agreement (as adjusted for stock splits, subdivisions and combinations, reclassifications and similar corporate actions), the Company shall permit a designee of Xxxxxxx Sachs or its affiliates (the "Observer") Required Lenders to attend and participate solely as a non-voting observer in all meetings of its Board the board of Directors directors (whether in person; telephonic or otherother similar body) (other than meetings of a and any committee of the board of directors (or other similar body) of the Loan Parties (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the obligation of Directors, unless other board observers are permitted the Loan Parties to attend such meetings) in permit a nonvoting observer capacity and. Board Observer as set forth in this respectSection 6.18 shall terminate automatically if the Lenders as of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shall, or shall provide cause its Subsidiary to, as the Observercase may be, concurrently with (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of Directorsthe board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary at the same time and in the same manner furnished to such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (v) cause regularly-scheduled Board Meetings of the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all notices, minutes, consents, and written consents duly passed by the board of directors (or other materials that it provided to such members (other than in meetings of a similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary. Xxxxxxxx shall reimburse the Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence for all reasonable and trust all information so provided to it or learned by it documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. Each Loan Party shall, and shall cause its rights hereunder; it being understood and agreed Subsidiaries to, indemnify the Board Observer solely in its capacity as the Board Observer (provided that, notwithstanding the foregoing, such indemnity shall not be available to the extent that any losses, damages, claims, liabilities and expenses resulted from (x) the gross negligence, bad faith or willful misconduct of the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of any act or omission of the Borrower or any of its Affiliates or (z) the material breach by the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the minutes, the written consents and all non-public information delivered to the Board Observer pursuant to this Section 6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, shall be permitted subject to use or the confidentiality provisions of Section 10.16, except that the Board Observer may disclose such information and materials to Xxxxxxx Xxxxx the Lenders and its affiliates their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with managing its investment in the Company; and provided, further, transactions contemplated hereby (it being understood that the Company reserves Persons to whom such disclosure is made will be informed of the right confidential nature of such Information and instructed to withhold any information or keep such Information confidential). Notwithstanding the forgoing, the Borrower shall 101 be entitled to exclude the Board Observer from any portion of any meeting or from receiving any portion thereof of the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) access to such information affect the attorney/client or attendance at such meeting could similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the attorney-client privilege between the Company and Borrower or any of its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its representative; or Subsidiaries under applicable Law, (iii) access conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such information restriction exists or attendance at such meeting could result has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest between Xxxxxxx Xxxxx interest, including as to any discussion and/or materials relating to (I) an actual or its representative potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the Companyother Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliates.