Common use of Inspection and Observation Clause in Contracts

Inspection and Observation. (a) Acusphere shall permit each Significant Investor (as defined in Section 3.2(b) hereof), at such Significant Investor's expense, to visit and inspect Acusphere's properties, to examine its books of account and records and to discuss Acusphere's affairs, finances and accounts with its officers, all at such reasonable times as may be requested by such Significant Investor; provided, however, that Acusphere shall not be obligated pursuant to this Section 3.2 to provide access to any information which its Board of Directors reasonably considers to be a trade secret or similar confidential information. (b) Acusphere will permit any Significant Investor (as hereinafter defined), any authorized representative thereof or any Series E Investor holding at least five percent (5%) of the Common Stock on a fully-diluted basis (the "Series E Five-Percent Holder"), to attend all meetings of the Board of Directors of Acusphere in a nonvoting observer capacity and shall, upon the written request of such Significant Investor or Series E Five-Percent Holder, provide such Significant Investor or Series E Five-Percent Holder with such notice and other information with respect to such meetings as are delivered to the directors of Acusphere; provided, however, that it is hereby acknowledged and agreed that only a single representative of each group consisting of a Significant Investor and its affiliates will be entitled to attend any such meeting pursuant to this Section 3.2(b). Upon the written request of any such Significant Investor or Series E Five-Percent Holder, Acusphere shall notify such Significant Investor or Series E Five-Percent Holder, within ten (10) days thereof, of the taking of any action by the Board of Directors of Acusphere in lieu of a meeting thereof. As used in this Section 3, the term "Significant Investor" shall mean (i) Elan so long as it, together with its affiliates, holds 5% or more of Acusphere's issued and outstanding shares of Common Stock on a fully diluted basis (assuming the conversion or exercise, as the case may be, of all outstanding securities or rights to acquire shares of Acusphere's Common Stock) and (ii) any other Investor who, together with its affiliates, holds at least 200,000 shares of Preferred Stock, including Common Stock issuable upon the conversion of Preferred Stock (as presently constituted and subject to subsequent adjustment for stock splits, stock dividends, reverse stock splits, recapitalizations and the like).

Inspection and Observation. (a) Acusphere shall permit each Significant Investor (as defined in Section 3.2(b) hereof), at such Significant Investor's expense, to visit and inspect Acusphere's properties, to examine its books of account and records and to discuss Acusphere's affairs, finances and accounts with its officers, all at such reasonable times as may be requested by such Significant Investor; provided, however, that Acusphere shall not be obligated pursuant to this Section 3.2 to provide access to any information which its Board of Directors reasonably considers to be a trade secret or similar confidential information. (b) Acusphere will permit any Significant Investor (as hereinafter defined), any authorized representative thereof or any Series E Investor holding shares of Series E-1 Stock and/or Series E-2 Stock and at least five percent (5%) of the Common Stock on a fully-diluted basis basis, assuming the conversion or exercise, as the case may be, of all outstanding securities or rights to acquire shares of Acusphere's Common Stock (the each, a "Series E Five-Percent Holder"), to attend all meetings of the Board of Directors of Acusphere in a nonvoting observer capacity and shall, upon the written request of such Significant Investor or Series E Five-Percent Holder, provide such Significant Investor or Series E Five-Percent Holder with such notice and other information with respect to such meetings as are delivered to the directors of Acusphere; provided, however, that it is hereby acknowledged and agreed that only a single representative of each group consisting of a Significant Investor and its affiliates will be entitled to attend any such meeting pursuant to this Section 3.2(b). Upon the written request of any such Significant Investor or Series E Five-Percent Holder, Acusphere shall notify such Significant Investor or Series E Five-Percent Holder, within ten (10) days thereof, of the taking of any action by the Board of Directors of Acusphere in lieu of a meeting thereof. As used in this Section 3, the term "Significant Investor" shall mean (i) Elan so long as it, together with its affiliates, holds 5% or more of Acusphere's issued and outstanding shares of Common Stock on a fully diluted basis (assuming the conversion or exercise, as the case may be, of all outstanding securities or rights to acquire shares of Acusphere's Common Stock) and (ii) any Investor other Investor than Alexandria who, together with its affiliates, holds at least 200,000 shares of Preferred Stock, including Common Stock issuable upon the conversion of Preferred Stock Stock, (as presently constituted and subject to subsequent adjustment for stock splits, stock dividends, reverse stock splits, recapitalizations and the like).