Common use of Board Nomination Rights Clause in Contracts

Board Nomination Rights. (a) Each of the Company and the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a). (b) The Investor shall take all necessary action to cause the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. (a) Each No later than thirty (30) days after the Closing, the Company shall increase the number of directors of the Board in accordance with Article III, Section 2 of the Bylaws to seven (7) directors and elect to the Board of Directors of the Company and (the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the “Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting”) one (1) individual designated by the Investor for election pursuant to this Section 2.1 nominee (the “Investor Security Holder Nominee”) designated by Xxxxxx X. Xxxxxxxx, as the representative of the Security Holders for purposes of this Agreement (the “Security Holder Representative”), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit fill the vote of stockholders vacancy created by increasing the size of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee)Board; provided, however, that no such action with respect to the Investor election of a Security Holder Nominee shall be required if the Board determinesreasonably determines in good faith, after consultation with outside legal counsel, that the Investor such Security Holder Nominee (i) has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or (ii) is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, (iii) does not meet the applicable independence standards required by the listing rules of the New York Stock Exchange, and/or (iv) does not have the requisite skill and experience to serve as a director of a publicly-traded company (as such requisite skill and experience is assessed by the Nominating and Corporate Governance Committee), in which case, case the Investor Security Holder Representative shall withdraw the designation of such Investor Security Holder Nominee and shall designate another individual as the Investor a Security Holder Nominee, whose which replacement will also be subject to the requirements of this Section 2.1(a). (b) . The Investor shall Security Holders will take all necessary action to cause the Investor any Security Holder Nominee to consent to all such reference and background checks and to provide such information (including information necessary to determine the Investor such Security Holder Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, Board or its Nominating and Corporate Governance Committee, as applicable, Committee may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, Company requests of all other nominees to the Board. As of the date of this Agreement, the Security Holder Representative has designated Xxxxxx X. Xxxxxxxx as the initial Security Holder Nominee, and the Company has determined that such Security Holder Nominee satisfies the requirements of this Section 2.1(a). (b) The Company agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), to include in the slate of nominees recommended by the Board (or the Nominating and Corporate Governance Committee of the Board) for election at any annual or special meeting of stockholders of the Company at which directors are to be elected to the Board (or consent in lieu of meeting) the applicable Security Holder Nominee, and to nominate, recommend and use its reasonable best efforts to solicit the vote of stockholders of the Company to elect to the Board such slate of directors (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that the stockholders of the Company vote in favor of the slate of directors, including the Security Holder Nominee). Notwithstanding anything to the contrary, however, nothing shall prevent the members of the Board from acting in accordance with their respective duties under Maryland law or other applicable law or rule or requirement of the New York Stock Exchange. The Board shall have no obligation to nominate, elect or appoint any Security Holder Nominee if (i) such nomination, election or appointment would violate applicable law or New York Stock Exchange requirements, or result in a breach by the Board of its fiduciary duties to the Company and its stockholders, (ii) the applicable Security Holder Nominee does not have the requisite skill and experience to serve as a director of a publicly-traded company (as such requisite skill and experience is assessed by the Nominating and Corporate Governance Committee), or (iii) the applicable Security Holder Nominee does not meet the applicable independence standards required by the listing rules of the New York Stock Exchange; provided that the foregoing shall not limit the right of the Security Holder Representative to designate an alternative individual as the Security Holder Nominee nominated for election to the Board, subject to the other terms, conditions and provisions of this Article II. (c) The Investor Security Holder Representative shall provide notice deliver to the Company and the Manager a written notice identifying the Investor Security Holder Nominee, together with all Nomination Information about the such proposed Investor Security Holder Nominee as shall be reasonably requested by the Board, Board (or its the Nominating and Corporate Governance Committee, as applicable, Committee thereof) no later than the earlier of (the “Nomination Deadline”) (x) fifteen (15) Business Days following the written request of the Company Company, and (y) the time by which such information is reasonably requested by the Board (or the Manager Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If the Investor Security Holder Representative fails to designate the Investor Security Holder Nominee it is entitled to designate prior to such time, then the Investor Security Holder Nominee previously designated by the Investor Security Holder Representative and then serving on the Board (if any is qualified to be nominated in accordance with this Agreementany) shall be the proposed Investor Security Holder Nominee.. If a Security Holder Nominee who has been designated by the Security Holder Representative and nominated for election as a director in accordance with this Section 2.1 is not so elected at any meeting of the stockholders of the Company at which directors are to be elected, then (x) such Security Holder Nominee shall not be a director for such new term, (y) any such election loss shall not be deemed to create a vacancy that the Security Holder Representative shall have the right to fill pursuant to this Agreement, and (z) neither the Company nor the Board will be obligated to increase the size of the Board or take any other action during such new term to elect such Security Holder Nominee or any designated replacement thereof to serve as an additional director during such new term; provided, however, that nothing in the foregoing clauses (x), (y) or (z) shall in any way affect the rights of the Security Holder Representative, in connection with the next meeting of the stockholders of the Company at which directors are to be elected, to designate the Security Holder Nominee to which it is entitled pursuant to Section 2.1(a) (subject to Section 2.1(f)); and (d) Prior to the Nomination Termination Date, the Investor Security Holder Representative shall have the exclusive right to designate a nominee to fill any vacancy and all vacancies created by reason of the death, resignation or removal (in accordance with the Charter) of the Investor Nominee, Security Holder Nominee and such nominee will be promptly elected to the Board by the Board to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no . If the Security Holder Representative fails to designate a replacement Security Holder Nominee for any such action with respect vacancy prior to the replacement Investor Nominee Nomination Deadline or, if later, the time by which the Company reasonably requires such information in connection with its next meeting of stockholders at which directors are to be elected, then such directorship shall be required if eliminated by the Board determineswith effect immediately prior to such next meeting. If such directorship shall be so eliminated, after consultation with outside legal counselthe Security Holder Representative shall have the right to designate the Security Holder Nominee pursuant to Section 2.1(a) (subject to Section 2.1(f)) to fill such vacancy at the subsequent meeting of stockholders at which directors are to be elected, that and immediately prior to such replacement Investor Nominee has been involved in any meeting the Company shall increase the number of directors of the events enumerated Board in Items 2(d) or (e) accordance with Article III, Section 2 of Schedule 13D under the Exchange Act or Item 401(f) Bylaws to create the necessary number of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(dvacancy(ies). (e) The Investor Security Holder Nominee serving as on the Board shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a director manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights rights, privileges and privileges compensation applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, terminate (and neither the Investor Security Holder Representative nor any other Security Holder shall have no any further rights to designate an Investor Nominee a Security Holder Nominee) upon the first to occur of: (as a replacement therefor), at A) such time as the Investor and its Affiliates are not either (i) Beneficial OwnersSecurity Holders Beneficially Own, in the aggregate, a number of shares of Common Stock representing less than 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, total number of shares of Common Stock in an amount that makes them one (on a fully diluted basis, taking into account all outstanding OP Units), or (B) the delivery by the Security Holder Representative of written notice to the Company irrevocably waiving and terminating all of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of Security Holders’ rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) under this Section 2.1 (the date of termination of the obligations of the Company and the Manager under this Section 2.1, 2.1 pursuant to the foregoing clauses (A) or (B) being referred to herein as the “Nomination Termination Date”), and upon such Nomination Termination Date, the Security Holder Representative shall cause the Security Holder Nominee then serving on the Board to promptly resign from the Board. (hg) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of Except in accordance with this Section 2.1, the Board shall not seek the removal of the Security Holder Nominee without the prior written consent of the Security Holder Representative.

Board Nomination Rights. (a) Each No later than thirty (30) days after the Closing, the Company shall increase the number of directors of the Board in accordance with Article III, Section 2 of the Bylaws to seven (7) directors and elect to the Board of Directors of the Company (the "Board") one (1) individual nominee (the "Security Holder Nominee") designated by Gerald R. Forsythe, as the representative of the Security Holders for purposes of this Agreement (the "Security Holder Representative"), to fill the vacancy created by increasing the size of the Board; provided, however, that no such election of a Security Holder Nominee shall be required if the Board reasonably determines in good faith, after consultation with outside legal counsel, that such Security Holder Nominee (i) has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, (ii) is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, (iii) does not meet the applicable independence standards required by the listing rules of the New York Stock Exchange, and/or (iv) does not have the requisite skill and experience to serve as a director of a publicly-traded company (as such requisite skill and experience is assessed by the Nominating and Corporate Governance Committee), in which case the Security Holder Representative shall withdraw the designation of such Security Holder Nominee and shall designate another individual as a Security Holder Nominee, which replacement will also be subject to the requirements of this Section 2.1(a). The Security Holders will take all necessary action to cause any Security Holder Nominee to consent to such reference and background checks and to provide such information (including information necessary to determine such Security Holder Nominee's independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board or its Nominating and Corporate Governance Committee may reasonably request in connection with the Company's disclosure obligations or in connection with the Company's legal, regulatory or stock exchange requirements (collectively, the "Nomination Information"), which requests shall be of the same type and scope as the Company requests of all other nominees to the Board. As of the date of this Agreement, the Security Holder Representative has designated Gerald R. Forsythe as the initial Security Holder Nominee, and the Manager Company has determined that such Security Holder Nominee satisfies the requirements of this Section 2.1(a). (b) The Company agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, Board (or its the Nominating and Corporate Governance Committee, as applicable, Committee of the Board) for election at any annual or special meeting of stockholders of the Company at which directors are to be elected to the Board (or consent in lieu of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor applicable Security Holder Nominee”), and (ii) to nominate, recommend and use its commercially reasonable best efforts to solicit the vote of stockholders of the Company to elect to the Investor Nominee Board such slate of directors (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor slate of directors, including the Security Holder Nominee); provided. Notwithstanding anything to the contrary, however, that nothing shall prevent the members of the Board from acting in accordance with their respective duties under Maryland law or other applicable law or rule or requirement of the New York Stock Exchange. The Board shall have no obligation to nominate, elect or appoint any Security Holder Nominee if (i) such action with respect nomination, election or appointment would violate applicable law or New York Stock Exchange requirements, or result in a breach by the Board of its fiduciary duties to the Investor Company and its stockholders, (ii) the applicable Security Holder Nominee shall be required if does not have the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject requisite skill and experience to any order, decree or judgment of any governmental authority prohibiting service serve as a director of any public company, , in which case, the Investor shall withdraw the designation of a publicly-traded company (as such Investor Nominee requisite skill and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a). (b) The Investor shall take all necessary action to cause the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or experience is assessed by the Nominating and Corporate Governance Committee), or (iii) the applicable Security Holder Nominee does not meet the applicable independence standards required by the listing rules of the New York Stock Exchange; provided that the foregoing shall not limit the right of the Security Holder Representative to designate an alternative individual as applicable, requests of all other nominees the Security Holder Nominee nominated for election to the Board, subject to the other terms, conditions and provisions of this Article II. (c) The Investor Security Holder Representative shall provide notice deliver to the Company and the Manager a written notice identifying the Investor Security Holder Nominee, together with all Nomination Information about the such proposed Investor Security Holder Nominee as shall be reasonably requested by the Board, Board (or its the Nominating and Corporate Governance Committee, as applicable, Committee thereof) no later than the earlier of (the "Nomination Deadline") (x) fifteen (15) Business Days following the written request of the Company Company, and (y) the time by which such information is reasonably requested by the Board (or the Manager Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If the Investor Security Holder Representative fails to designate the Investor Security Holder Nominee it is entitled to designate prior to such time, then the Investor Security Holder Nominee previously designated by the Investor Security Holder Representative and then serving on the Board (if any is qualified to be nominated in accordance with this Agreementany) shall be the proposed Investor Security Holder Nominee.. If a Security Holder Nominee who has been designated by the Security Holder Representative and nominated for election as a director in accordance with this Section 2.1 is not so elected at any meeting of the stockholders of the Company at which directors are to be elected, then (x) such Security Holder Nominee shall not be a director for such new term, (y) any such election loss shall not be deemed to create a vacancy that the Security Holder Representative shall have the right to fill pursuant to this Agreement, and (z) neither the Company nor the Board will be obligated to increase the size of the Board or take any other action during such new term to elect such Security Holder Nominee or any designated replacement thereof to serve as an additional director during such new term; provided, however, that nothing in the foregoing clauses (x), (y) or (z) shall in any way affect the rights of the Security Holder Representative, in connection with the next meeting of the stockholders of the Company at which directors are to be elected, to designate the Security Holder Nominee to which it is entitled pursuant to Section 2.1(a) (subject to Section 2.1(f)); and (d) Prior to the Nomination Termination Date, the Investor Security Holder Representative shall have the exclusive right to designate a nominee to fill any vacancy and all vacancies created by reason of the death, resignation or removal (in accordance with the Charter) of the Investor Nominee, Security Holder Nominee and such nominee will be promptly elected to the Board by the Board to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no . If the Security Holder Representative fails to designate a replacement Security Holder Nominee for any such action with respect vacancy prior to the replacement Investor Nominee Nomination Deadline or, if later, the time by which the Company reasonably requires such information in connection with its next meeting of stockholders at which directors are to be elected, then such directorship shall be required if eliminated by the Board determineswith effect immediately prior to such next meeting. If such directorship shall be so eliminated, after consultation with outside legal counselthe Security Holder Representative shall have the right to designate the Security Holder Nominee pursuant to Section 2.1(a) (subject to Section 2.1(f)) to fill such vacancy at the subsequent meeting of stockholders at which directors are to be elected, that and immediately prior to such replacement Investor Nominee has been involved in any meeting the Company shall increase the number of directors of the events enumerated Board in Items 2(d) or (e) accordance with Article III, Section 2 of Schedule 13D under the Exchange Act or Item 401(f) Bylaws to create the necessary number of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(dvacancy(ies). (e) The Investor Security Holder Nominee serving as on the Board shall be subject to the policies and requirements of the Company and the Board, including the Company's Corporate Governance Guidelines and the Company's Code of Business Conduct and Ethics, in a director manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights rights, privileges and privileges compensation applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, terminate (and neither the Investor Security Holder Representative nor any other Security Holder shall have no any further rights to designate an Investor Nominee a Security Holder Nominee) upon the first to occur of: (as a replacement therefor), at A) such time as the Investor and its Affiliates are not either (i) Beneficial OwnersSecurity Holders Beneficially Own, in the aggregate, a number of shares of Common Stock representing less than 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, total number of shares of Common Stock in an amount that makes them one (on a fully diluted basis, taking into account all outstanding OP Units), or (B) the delivery by the Security Holder Representative of written notice to the Company irrevocably waiving and terminating all of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of Security Holders' rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) under this Section 2.1 (the date of termination of the obligations of the Company under this Section 2.1 pursuant to the foregoing clauses (A) or (B) being referred to herein as the "Nomination Termination Date"), and upon such Nomination Termination Date, the Manager under Security Holder Representative shall cause the Security Holder Nominee then serving on the Board to promptly resign from the Board. (g) Except in accordance with this Section 2.1, the “Nomination Termination Date”). (h) As Board shall not seek the removal of the date Security Holder Nominee without the prior written consent of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1Security Holder Representative.

Board Nomination Rights. (a) Each For so long as the Investors collectively Beneficially Own at least 5% of the outstanding Common Stock (including, for the avoidance of doubt, the Corre Warrants and excluding any outstanding Common Stock issued as a result of an Excluded Issuance) (the “First Equity Threshold Amount”), the Company shall, upon written request by the Investor Representative, take all Necessary Action, subject to the following provisos, to cause one member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder, subject to the Qualification Requirements (as defined below). For so long as the Investors collectively Beneficially Own at least 15% of the outstanding Common Stock (including, for the avoidance of doubt, the Corre Warrants and excluding any outstanding Common Stock issued as a result of an Excluded Issuance) (the “Second Equity Threshold Amount”), the Company shall, upon written request by the Investor Representative, take all Necessary Action, subject to the following provisos, to cause one additional member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder (each such director appointed in accordance with this sentence and the Manager agreespreceding sentence, an “Investor Equity Director”), subject to the Qualification Requirements. For so long as the First Equity Threshold Amount is satisfied, the Company shall, upon written request by the Investor Representative, take all Necessary Action, subject to the following provisos, to cause the fullest extent permitted chairman of the Board (the “Chairman”) to be the member of the Board that is designated in writing by applicable law the Investor Representative, acting on behalf of the Investors, hereunder. For so long as any Investors (including or any of their Affiliates) hold any indebtedness or have any undrawn commitment to fund indebtedness under or with respect to the A&R Credit Agreement, the Delayed Draw Term Loans (as defined in the Eclipse Credit Agreement) (the Delayed Draw Term Loans, together with the A&R Credit Agreement, the “Debt Facilities”) or, in each case, any standard refinancing, extension, rollover or modification of conduct required the Debt Facilities held by any Investor or any of directors under Maryland lawtheir respective Affiliates as of the date hereof (such indebtedness or commitments collectively, the “Lender Threshold Amount”), until the Nomination Termination DateCompany shall, upon written request by the Investor Representative, take all Necessary Action, subject to the following provisos, to cause one additional member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder (the “Lender Director” and, together with the Investor Equity Directors, the “Investor Directors”), subject to the Qualification Requirements. If the Board increases the size of the Board to eight or more members on or after the date of this Agreement, the Investors shall retain their Proportional rights to nominate Investor Directors (for the avoidance of doubt, and by way of example only and without limitation, the Investors shall be entitled to four Investor Directors if the Board has eight or nine members, five Investor Directors if the Board has ten or eleven members), subject to the First Equity Threshold Amount, the Second Equity Threshold Amount and the Lender Threshold Amount, as applicable; provided that (i) to include in the slate of nominees recommended by the Board, any additional Investor Director shall either be a Lender Director or its Nominating and Corporate Governance Committeean Investor Equity Director, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual designated determined by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), Representative in its sole discretion and (ii) to nominatein the event that any such additional Investor Director is an Investor Equity Director, recommend and use its commercially reasonable efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee (which efforts shall, parties hereto shall determine in good faith appropriate modifications to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the threshold amounts for Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)Equity Directors. (b) Notwithstanding anything to the contrary in this Section 2.2, the Corporate Governance and Nominating Committee may choose not to nominate or appoint each Investor Director, as the case may be, if the election or appointment of such candidate to the Board would result in the Company failing to comply with any rule or regulation of the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading or any other applicable law, rule or regulation, and if the Corporate Governance and Nominating Committee so chooses not to nominate or appoint such Investor Director, then in the case of an election of a candidate to the Board, the Investor Representative may designate in writing a replacement director nominee until each Investor Director that is a suitable candidate, as determined by the Corporate Governance and Nominating Committee, is nominated. The Investor Corporate Governance and Nominating Committee shall take all necessary action Necessary Action to cause ensure that the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails Representative is able to designate the each Investor Nominee it is entitled Director pursuant to designate prior to such timethis Section 2.2, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee Qualification Requirements. A nominee shall not be eligible to receive compensation serve as an Investor Director if such nominee (including equity awardsA) applicable to unaffiliated non-employee directors. In furtherance of does not satisfy the foregoing, the Company shall indemnify, exculpate, skill and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance experience qualifications for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity service as a director of the Company and (a) which applicable to all directors of the Company is financially able to undertake(it being understood that any determination that a nominee Investor Director does not satisfy such qualifications must be made by a majority of the full Board (excluding any director that has recused himself or herself) in good faith), (bB) which the Company is not prohibited by contract or from serving as an independent director pursuant to any applicable law from pursuing (including, without limitation, the Exchange Act and the Xxxxxxx Antitrust Act of 1914, as amended) or undertaking, (c) which, from its nature, is in rule or regulation of the line of Commission or any national securities exchange on which the Company’s businessCommon Stock is listed or admitted to trading, (dC) which is of practical advantage to the Company and (e) in which the Company has an interest employee or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the a Company has been involved in any of the events enumerated in Items 2(d) Competitor or (eD) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Actdoes not irrevocably agree in writing, or any comparable successor provision, or is subject in a form reasonably acceptable to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, both the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of Representative and the Company, andsubject to applicable law, if to immediately resign from the Nomination Termination Date has not occurredBoard in the event that (1) the Investors collectively cease to hold the First Equity Threshold Amount, may designate another individual the Second Equity Threshold Amount or the Lender Threshold Amount, as applicable and such Investor Director subsequently receives written notice from the Investor Nominee. If an Representative requesting that such Investor Nominee does not Director resign within thirty from the Board, or (302) days of any such request, all obligations of the Company and the Manager under this conditions specified in Section 2.1 shall terminate, and the Investor 2.2(d) shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) occurred (the date of termination of the obligations of the Company and the Manager under this Section 2.1conditions set forth in sub-sections (A) through (D) collectively, the “Nomination Termination DateQualification Requirements”). (h) As . For the avoidance of doubt, as of the date of this Agreement, (i) the First Equity Threshold Amount, the Second Equity Threshold Amount and the Lender Threshold Amount are each satisfied, (ii) the Investors are entitled to appoint a total of three (3) individuals to serve as Investor has designated Xxxxxx Xxxxxxx as Directors pursuant to this Section 2.2 and (iii) the initial Investor NomineeDirectors shall be Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx and X. Xxxxxxx Xxxxxxxx, respectively, each of whom shall be deemed, solely as of the date hereof, to satisfy, and who the Company agrees satisfies, all qualification and other requirements hereunder, including the Qualification Requirement, for the appointment of such person as an Investor Director. (c) Subject to the other provisions of this Section 2.2, each Investor Director designated by the Investor Representative and elected as a member of the Board shall serve as an Investor Director until the expiration of his or her term of office, and in such case the Investor Representative, acting on behalf of the Investors, may designate a successor Investor Director in accordance with this Section 2.2 upon prompt written notice to the Company at least ninety (90) calendar days prior to the one-year anniversary of the filing of the proxy statement in connection with the annual meeting of the stockholders of the Company immediately preceding the annual meeting for the election of the class of directors in which such Investor Director is placed. (d) In the event that an Investor Director fails to satisfy sub-sections (B) or (C) of the Qualification Requirements, the Investors agree, promptly upon (and in any event within five (5) Business Days following) receipt of a written request from the Company, to cause such Investor Director who at any given time is disqualified from serving on the Board pursuant to this Section 2.2(d) to resign from the Board effective immediately or to cause such Investor Director to be removed from the Board in accordance with Section 2.2(e). (e) In the event of (i) the resignation, death or removal (including removal for cause) of any Investor Director from the Board (including pursuant to Section 2.2(d)), (ii) an Investor Director ceasing to be a member of the Board at any time and for any reason or (iii) the creation of a vacancy on the Board as a result of an increase in the size of the Board in compliance with the terms of this Agreement and the Manager Company’s Bylaws, the Investor Representative, acting on behalf of the Investors, shall have determined the right but not the obligation, such determination to be made in the sole discretion of the Investor Representative and subject to the other provisions of this Section 2.2, to designate in writing a successor Investor Director (or new Investor Director, as applicable) to the Board to fill the resulting vacancy on the Board, subject to the Qualification Requirements. In the event that the Investor Nominee satisfies Representative chooses not to designate in writing an Investor Director to fill any such resulting vacancy on the requirements Board in accordance with the terms and conditions herein, the resulting vacancy shall remain until the Investor Representative designates a successor Investor Director in accordance with this Section 2.2. (f) Subject to the Company’s Bylaws and Section 2.2(a) and Section 2.2(e) of this Section 2.1Agreement, the parties hereto agree that the size of the Board may be increased or decreased as determined by the Board.

Board Nomination Rights. (a) Each of the The Company and the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual the individuals designated by the Investor Xxxxxxxx for election pursuant to this Section 2.1 (each, an “Xxxxxxxx Nominee” and collectively, the “Investor NomineeXxxxxxxx Nominees”), and (ii) to nominate, recommend and use its commercially reasonable best efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee Xxxxxxxx Nominees (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor NomineeXxxxxxxx Nominee(s)); provided, however, that no such action with respect to the Investor a particular Xxxxxxxx Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a). (b) The Investor shall take all necessary action to cause the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Xxxxxxxx Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor Xxxxxxxx shall withdraw the designation of such replacement Investor Xxxxxxxx Nominee and shall designate another individual as the Investor an Xxxxxxxx Nominee, whose which replacement will also be subject to the requirements of this Section 2.1(d2.1(a). (b) For any meeting (or consent in lieu of meeting) of the Company’s stockholders for the purpose of electing directors, among other purposes, the Board, or its Nominating and Corporate Governance Committee, shall not nominate, in the aggregate, a number of nominees greater than the then-current number of director positions on the Board. (c) Xxxxxxxx will take all necessary action to cause each Xxxxxxxx Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine such Xxxxxxxx Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Company requests of all other nominees to the Board. (d) Xxxxxxxx shall provide notice to the Company identifying each such Xxxxxxxx Nominee, together with all Nomination Information about such proposed Xxxxxxxx Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, no later than the earlier of (i) fifteen Business Days following the written request of the Company and (ii) the time by which such information is reasonably requested by the Board (or the Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If Xxxxxxxx fails to designate all of the Xxxxxxxx Nominees it is entitled to designate prior to such time, then the Xxxxxxxx Nominee(s) previously designated by Xxxxxxxx and then serving on the Board (if any) shall be the proposed Xxxxxxxx Nominee(s). (e) The Investor Nominee serving as a director shall be entitled Prior to the same rights Nomination Termination Date, Xxxxxxxx shall have the exclusive right to designate a nominee to fill any and privileges applicable to all other members vacancies created by reason of the Board generally death, resignation or removal of any Xxxxxxxx Nominee, and such nominee will be promptly elected to which all such members serve until the next annual meeting of the Board are entitledstockholders and until his or her successor is duly elected and qualifies; provided, however, that the Investor no such action with respect to a particular Xxxxxxxx Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of required if the Board pursuant to the Charterreasonably determines, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor such Xxxxxxxx Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case Xxxxxxxx shall withdraw the Investor designation of such Xxxxxxxx Nominee and shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as an Xxxxxxxx Nominee, which replacement will also be subject to the Investor Nomineerequirements of this Section 2.1(e). (f) Each Xxxxxxxx Nominee serving as a director shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights, privileges and compensation applicable to all other members of the Board generally or to which all such members of the Board are entitled. If In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Xxxxxxxx Nominees (including by entering into an Investor Nominee does not resign within thirty indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Xxxxxxxx Nominees with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. (30g) days The obligations of any such requestthe Company pursuant to this Section 2.1 shall be subject to the following: (i) so long as Xxxxxxxx and its Affiliates Own, in the aggregate, shares of Common Stock representing at least 15% of the Outstanding Voting Power, the number of Xxxxxxxx Nominees which may be designated pursuant to this Section 2.1 shall equal the lowest whole number of directors that is at least 40% of the total number of directors; (ii) in the event that Xxxxxxxx and its Affiliates Own, in the aggregate, shares of Common Stock representing less than 15% but greater than or equal to 10% of the Outstanding Voting Power, the number of Xxxxxxxx Nominees which may be designated by Xxxxxxxx pursuant to this Section 2.1 shall be equal to the lowest whole number of directors that is at least 25% of the total number of directors; (iii) in the event that Xxxxxxxx and its Affiliates Own, in the aggregate, shares of Common Stock representing less than 10% but greater than or equal to 5% of the Outstanding Voting Power, the number of Xxxxxxxx Nominees which may be designated by Xxxxxxxx pursuant to this Section 2.1 shall be equal to the lowest whole number of directors that is at least 10% of the total number of directors; and (iv) all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor Xxxxxxxx shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor)any Xxxxxxxx Nominees, at such time as the Investor Xxxxxxxx and its Affiliates are not either (i) Beneficial Ownersshall Own, in the aggregate, of shares of Common Stock representing 10less than 5% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) Outstanding Voting Power (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) . As of the date of this Agreement, the Investor Xxxxxxxx has designated Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx Xxxxxxx as the initial Investor NomineeXxxxxxxx Nominees, and the Company and the Manager have has determined that the Investor Nominee satisfies such Xxxxxxxx Nominees satisfy the requirements of this Section 2.1.

Board Nomination Rights. (a) Each of the Company and the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a). (b) The Investor shall take all necessary action to cause the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than the earlier of (i) fifteen Business Days following the written request of the Company or the Manager and (ii) the time by which such information is reasonably requested by the Board (or the Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty fifteen (3015) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Ownersshall Beneficially Own, in the aggregate, of shares of Common Stock representing less than 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx Xxxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. (a) Each For so long as the Investors collectively Beneficially Own at least 10% of the issued and outstanding Common Stock, the Company and shall, upon written request by the Manager agreesInvestor Representative, take all Necessary Action to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) increase the size of the Board by one Person, and (ii) subject to include the following provisos, cause one member of the Board to consist of the nominee designated in the slate of nominees recommended writing by the BoardInvestor Representative, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders acting on behalf of the Company at which directors are Investors, hereunder (the “Investor Director”) and to cause such Investor Director to be elected (or consent in lieu appointed to one existing committee of such a meeting) one (1) individual the Board designated by the Investor for election Representative and any committees of the Board established after the date hereof designated by the Investor Representative, subject to the Qualification Requirements (as defined below); provided, that in making such nomination the Investor Representative shall consider, and reasonably cooperate with the Company in satisfying, any diversity requirements applicable to the Board pursuant to this Section 2.1 applicable law or applicable stock exchange rules; and provided, further, that (i) at any time the “Investors collectively Beneficially Own at least 15% of the issued and outstanding Common Stock, the Company shall, upon written request by the Investor Nominee”Representative, take all Necessary Action to cause the Investor Director to be appointed to two existing committees of the Board designated by the Investor Representative and any committees of the Board established after the date hereof designated by the Investor Representative, subject to the Qualification Requirements (as defined below), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit at any time the vote of stockholders Investors collectively Beneficially Own at least 25% of the issued and outstanding Common Stock, the Company to elect shall, upon written request by the Investor Nominee (which efforts shallRepresentative, take all Necessary Action to cause the Investor Director to be appointed to any committees of the Board designated by the Investor Representative, subject to the fullest extent permitted by Qualification Requirements (as defined below). Notwithstanding anything to the contrary in this Section 2.2(a), the Nominating and Governance Committee of the Board (the “Nominating and Governance Committee”) may choose not to nominate or appoint an Investor Director, as the case may be, if the election or appointment of such candidate to the Board or committee of the Board would result in the Company failing to comply with any rule or regulation of the U.S. Securities and Exchange Commission (the “Commission”) or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading or any other applicable law, include rule or regulation, and if the inclusion Nominating and Governance Committee so chooses not to nominate or appoint an Investor Director, then in any proxy statement preparedthe case of an election of a candidate to the Board, usedthe Investor Representative may designate in writing a replacement director nominee until an Investor Director that is a suitable candidate, delivered or publicly filed as determined by the Company Nominating and Governance Committee, is nominated. The Nominating and Governance Committee shall take all Necessary Action to solicit ensure that the vote of its stockholders in connection with any such meeting of Investor Representative is able to designate a member to the recommendation Board and to each committee of the Board that designated by the stockholders Investor Representative pursuant to this Section 2.2(a), subject to the Qualification Requirements. A nominee shall not be eligible to serve as an Investor Director if such nominee (A) does not have the requisite skill and experience to serve as a director of a public company as reasonably determined by the Board in good faith, (B) is prohibited from serving as a director pursuant to any applicable law (including the Exchange Act and the Xxxxxxx Antitrust Act of 1914, as amended) or rule or regulation of the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading, (C) is an employee or director of a Company vote Competitor, or (D) does not irrevocably agree in favor writing, in a form reasonably acceptable to both the Investor Representative and the Company, subject to applicable law, to immediately resign from the Board in the event that (1) the Investors collectively cease to Beneficially Own at least 10% of the Investor Nomineeissued and outstanding Common Stock, or (2) the conditions specified in Section 2.2(c) shall have occurred (the “Qualification Requirement”); provided, however, that no (x) any such action with respect determination that such nominee is ineligible to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service serve as a director pursuant to the foregoing clause (A) may only be made by unanimous approval of the Board (excluding, for the avoidance of doubt, any Investor Director who is then a member of the Board) and (y) within two (2) business days of any public company, , in which casesuch determination pursuant to the foregoing clause (A), the Investor Company shall withdraw the designation notify Stonepeak of such Investor Nominee determination in writing and shall designate another individual as setting forth in reasonable detail the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)grounds for such determination. (b) The Investor shall take all necessary action Subject to cause the other provisions of this Section 2.2, the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine Director designated by the Investor Nominee’s independence status Representative and elected as well as information necessary to determine any disclosure obligations a member of the Company) Board shall serve as the BoardInvestor Director until the expiration of his or her term of office, or its Nominating and Corporate Governance Committeein such case the Investor Representative, as applicableacting on behalf of the Investors, may reasonably request designate a successor Investor Director in connection accordance with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (cSection 2.2(a) The Investor shall provide hereof upon prompt written notice to the Company and at least 90 days prior to the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request first anniversary of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next preceding year’s annual meeting of the stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of Representative must provide the Company with a reasonable opportunity for the Board and (athe Nominating and Governance Committee thereof to determine compliance with the provisions of Section 2.2(a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, hereof. (c) whichIn the event that the Investor Director fails to satisfy the Qualification Requirement, the Investors agree promptly upon (and in any event within five Business Days following) receipt of a written request from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel“Resignation Notice”), that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-Investor Director who at any given time is disqualified from serving Investor Nominee on the Board pursuant to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate2.2(c), to resign from the Board (and any committee thereof) effective immediately or to cause such Investor Director to be removed from the Investor shall have no further rights to designate an Investor Nominee (as a replacement thereforBoard in accordance with Section 2.2(d). (gd) All obligations In the event of the Company resignation, death or removal (for cause or otherwise) of any Investor Director from the Board, the Investor Representative, acting on behalf of the Investors, shall have the right but not the obligation, such determination to be made in the sole discretion of the Investor Representative and subject to the Manager under other provisions of this Section 2.1 shall terminate2.2, to designate in writing a successor Investor Director to the Board to fill the resulting vacancy on the Board (and any applicable committee thereof), subject to the Qualification Requirement. In the event that the Investor shall have no further rights Representative chooses not to designate an Investor Nominee (as in writing a replacement therefor)director to fill the resulting vacancy on the Board in accordance with the terms and conditions herein, at such time as the resulting vacancy shall remain until the Investor and its Affiliates are not either (i) Beneficial Owners, Representative designates a successor Investor Director in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under accordance with this Section 2.1, the “Nomination Termination Date”)2.2. (he) As of Notwithstanding anything to the date of this Agreementcontrary herein, at any time an Investor Director is serving on the Board, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined number of Board Observers that the Investor Nominee satisfies the requirements of this Investors may designate pursuant to Section 2.12.1 hereof shall be reduced from two Board Observers to one Board Observer.

Board Nomination Rights. (a) Each of the Company and the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a). (b) The Investor shall take all necessary action to cause the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than the earlier of (i) fifteen Business Days following the written request of the Company or the Manager and (ii) the time by which such information is reasonably requested by the Board (or the Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty fifteen (3015) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Ownersshall Beneficially Own, in the aggregate, of shares of Common Stock representing less than 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx Exxxxx Xxxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. (a) Each Upon completion of the Company and the Manager agreesContemplated Transactions, to the fullest extent permitted by applicable law (including in connection with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company Shareholders at which directors are shall be elected, until the date on which East ceases to be elected beneficially own more than fifteen percent (or consent in lieu 15%) of such a meetingthe outstanding Common Stock, East shall have the right to designate (i) up to two (2) persons, of which at least one (1) individual designated of such person is not an Interested Person of the Company, for nomination by the Investor Board for election to the Board if the Board is composed of fewer than seven (7) directors or (ii) up to three (3) persons, of which at least one (1) of such person is not an Interested Person of the Company, for nomination by the Board for election to the Board if the Board is composed of seven (7) or more directors (each person so designated an “East Nominee”, and such period during which East is permitted to designate an East Nominee pursuant to this Section 2.1 (2(a) being the “Investor NomineeEast Nomination Period”), and (ii) . East shall not designate any person to nominate, recommend and use its commercially reasonable efforts to solicit be an East Nominee who it reasonably believes does not meet the vote of stockholders requirements for director nominees as set forth in any applicable policies of the Company relating to elect the Investor Nominee (which efforts shall, director qualification from time to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)time. (b) The Investor shall take all necessary action to cause Board or, if then constituted, the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations nominating committee of the Company) Board or any committee performing similar functions (the “Nominating Committee”), as applicable, shall promptly and in good faith consider each East Nominee designated pursuant to Section 2(a), applying the same standards as shall be applied for the consideration of other proposed nominees of the Board, . If the Board or its the Nominating and Corporate Governance Committee, as applicable, may reasonably request determines in connection with writing (which determination shall set forth the Company’s disclosure obligations reasonable grounds for such determination) that any East Nominee would not be qualified under any applicable law, rule or in connection with regulation to serve as a director of the Company’s legalCompany and fails to approve the nomination of such East Nominee, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests then East shall be entitled to designate another person as an East Nominee and the provisions of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees Section 2 shall apply to the Boardsuch alternate person. (c) The Investor shall provide notice Subject to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request requirements of the Company Certificate of Incorporation, Bylaws, rules of the stock exchange on which the Common Stock is then listed or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such timeapplicable law, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of vacancies arising through the death, resignation or removal of any East Nominee who was elected or appointed to the Investor NomineeBoard pursuant to this Section 2, may be filled by the Board only with a substitute East Nominee designated by East (which East Nominee shall be subject to review by the Board or Nominating Committee, as applicable, under the standards set forth in Section 2(b)), and such nominee will be promptly elected to serve the director so chosen shall hold office until the next annual meeting of stockholders and election or until his or her successor is duly elected and qualifies; providedqualified, howeveror until his or her earlier death, that no such action with respect resignation or removal. (d) During the East Nomination Period, the Company shall, at least 45 days prior to the replacement Investor Nominee shall be required if the Board determinesexpected mailing date, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved (i) notify East in any writing of the events enumerated date on which the proxy statement in Items 2(dconnection with an election of directors at an annual or special meeting of Shareholders is expected to be first mailed by the Company and (ii) provide a form of prospective director questionnaire eliciting information of a type customarily provided by directors or prospective directors in connection with the director nomination process (each a “D&O Questionnaire”) to be completed by each East Nominee. Following receipt of such Company notice, East shall, within 15 days after the date of the Company’s notice, (i) deliver a written notice to the Company setting forth the name and address of each East Nominee and (ii) provide a completed and signed D&O Questionnaire from each East Nominee. The Company shall provide each East Nominee with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to such East Nominee. The Company shall incorporate reasonable comments from each such East Nominee in the proxy materials relating to such matters. (e) In the event the Shareholders fail to elect an East Nominee to the Board at any annual or special meeting of Schedule 13D under the Exchange Act or Item 401(fShareholders at which directors are elected, (i) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and East shall designate another individual person as an East Nominee and the Investor Nominee, whose replacement will also be provisions of Section 2 shall apply to such alternate person and (ii) subject to the requirements of this Section 2.1(d)Certificate of Incorporation, Bylaws, rules of the stock exchange on which the Common Stock is then listed or applicable law, the Board shall reasonably promptly elect such alternate East Nominee to any such vacancy on the Board resulting from the Shareholders failure to elect an East Nominee to the Board at any annual or special meeting of Shareholders at which directors shall be elected. For the avoidance of doubt, in no event shall the Board be required to appoint or elect an East Nominee to the Board if the Shareholders fail to elect to such East Nominee to the Board at such annual or special meeting of Shareholders at which directors are elected. (ef) The Investor Nominee serving as a director Company agrees that at all times during the East Nomination Period (i) subject to rules of the stock exchange on which the Common Stock is then listed or applicable law, the Bylaws and the Certificate of Incorporation shall accommodate, be entitled to the same subject to, and shall not in any way conflict with, East’s rights and privileges obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with East’s rights and obligations set forth herein. The Company further agrees that it shall not enter into any agreements or understandings with any Shareholder (other than any agreement equally applicable to all other members of the Board generally or Shareholders) without prior notice to which all such members of the Board are entitledEast; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee provide to East (including by entering into an indemnification agreement in x) a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days final copy of any such request, all obligations agreements or understandings no later than five (5) business days prior to the signing of such agreements or understandings and (y) a fully executed copy of such agreement promptly following its execution (unless such executed agreement is available on the Company Securities and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement thereforExchange Commission’s EXXXX filing system). (g) All obligations of During the Company and East Nomination Period, in the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either event that (i) Beneficial Owners, in the aggregate, Board has increased the size of shares of Common Stock representing 10% the Board to seven (7) or more directors from the current size of the shares of Common Stock then outstanding six (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock6) or directors and (ii) both East subsequently provides a written notice to the Company setting forth the name and address of an East Nominee and a completed and signed D&O Questionnaire from such East Nominee, not later than the 90th day after the date of the Company’s receipt of such written notice, the Board shall, subject to (ai) Beneficial Ownersthe requirements of Certificate of Incorporation, in Bylaws, rules of the aggregatestock exchange on which the Common Stock is then listed or applicable law and (ii) review by the Board or Nominating Committee, as applicable, of shares of Common Stock such East Nominee under the standards set forth in an amount Section 2(b), elect such East Nominee to the Board to fill the vacancy created by the increased Board size such that makes them one of the there will be three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon East Nominees on the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”)Board. (h) As During the East Nomination Period, East hereby agrees that (i) the method set forth in this Section 2 shall be the exclusive means for East to designate, nominate, seek to designate or seek to nominate, as applicable, any person for election as a director to the Board and (ii) it shall not, directly or indirectly, make use of, or otherwise seek to avail itself of, any other rights or means to designate, nominate, seek to designate or seek to nominate, as applicable, any person for election as a director to the Board, including pursuant to any rights available to any Shareholder under the Certificate of Incorporation, Bylaws or applicable law. (i) The East Nomination Period shall be adjusted to the extent East’s ownership of the date outstanding Common Stock falls below 15% solely as a result of this Agreementa sale or other issuance of Common Stock by the Company. In the event of any sale or issuance by the Company that would have the effect of causing East’s beneficial ownership of the outstanding Common Stock to fall below 15%, the Investor has designated Xxxxxx Xxxxxxx 15% threshold set forth in Section 2(a) above shall be reduced by a percentage equal to the percentage by which East’s ownership of the Common Stock was reduced as a result of such sale or issuance by the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1Company.

Board Nomination Rights. (a) Each For so long as the Investors collectively Beneficially Own at least 5% of the issued and outstanding Common Stock (the “Director Threshold Amount”), the Company and shall, upon written request by the Manager agreesInvestor Representative, take all Necessary Action, subject to the following provisos, to cause one member of the fullest extent permitted Board to consist of the nominee designated in writing by applicable law the Investor Representative, acting on behalf of the Investors, hereunder (including with respect to any standard of conduct required of directors under Maryland lawthe “Investor Director”), until subject to the Nomination Termination DateQualification Requirements (as defined below). Notwithstanding anything to the contrary in this Section 2.2(a), (i) the Corporate Governance and Nominating Committee may choose not to include nominate or appoint an Investor Director, as the case may be, if the election or appointment of such candidate to the Board would result in the slate Company failing to comply with any rule or regulation of nominees recommended by the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading or any other applicable law, rule or regulation, and if the Corporate Governance and Nominating Committee so chooses not to nominate or appoint an Investor Director, then in the case of an election of a candidate to the Board, or its Nominating and the Investor Representative may designate in writing a replacement director nominee until an Investor Director that is a suitable candidate, as determined by the Corporate Governance and Nominating Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are is nominated. The Corporate Governance and Nominating Committee shall take all Necessary Action to be elected (or consent in lieu of such a meeting) one (1) individual designated by ensure that the Investor for election Representative is able to designate a member to the Board pursuant to this Section 2.1 (the “Investor Nominee”2.2(a), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee (which efforts shall, subject to the fullest extent permitted by applicable law, include Qualification Requirements. A nominee shall not be eligible to serve as an Investor Director if such nominee (A) does not satisfy the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting skill and experience qualifications for service as a director of the Company applicable to all directors of the Company (it being understood that any public companydetermination that a nominee Investor Director does not satisfy such qualifications must be made by a majority of the full Board in good faith, (B) is prohibited from serving as an independent director pursuant to any applicable law (including, without limitation, the Exchange Act and the Xxxxxxx Antitrust Act of 1914, as amended) or rule or regulation of the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading, (C) is an employee or director of a Company Competitor or (D) does not irrevocably agree in writing, in which casea form reasonably acceptable to both the Investor Representative and the Company, subject to applicable law, to immediately resign from the Board in the event that (1) the Investors collectively cease to hold the Director Threshold Amount, or (2) the conditions specified in Section 2.2(c) shall have occurred (the conditions set forth in sub-sections (A) through (D) collectively, the Investor shall withdraw “Qualification Requirement”). For the designation avoidance of such Investor Nominee and shall designate another individual as doubt, (x) the Investor NomineeDirector under this Agreement shall also satisfy the definition of the “Independent Director” under the Term Loan Credit Agreement, whose replacement will also be subject (y) the aggregate number of Investor Directors under this Agreement and “Independent Directors” under the Term Loan Credit Agreement at any given time shall never exceed one (except to the requirements extent separately agreed by the Investors and the Company after the date hereof) and (z) the initial Investor Director as of the date of this Section 2.1(aAgreement shall be Xxxx Xxxxxxxx (who shall be deemed, solely as of the date hereof, to satisfy, and who the Company agrees satisfies, all qualification and other requirements hereunder, including the Qualification Requirement, for the appointment of an Investor Director). (b) The Investor shall take all necessary action Subject to cause the other provisions of this Section 2.2, the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine Director designated by the Investor Nominee’s independence status Representative and elected as well as information necessary to determine any disclosure obligations a member of the Company) Board shall serve as the BoardInvestor Director until the expiration of his or her term of office, or its Nominating and Corporate Governance Committeein such case the Investor Representative, as applicableacting on behalf of the Investors, may reasonably request designate a successor Investor Director in accordance with Section 2.2(a) hereof upon prompt written notice to the Company at least ninety (90) calendar days prior to the one-year anniversary of the filing of the proxy statement in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be annual meeting of the same type and scope as stockholders of the Board or Company immediately preceding the Nominating and Corporate Governance Committee, as applicable, requests annual meeting for the election of all other nominees to the Boardclass of directors in which the Investor Director is placed. (c) The Investor shall provide notice to In the Company and the Manager identifying event that the Investor NomineeDirector fails to satisfy sub-sections (B) or (C) of the Qualification Requirement, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the BoardInvestors agree, or its Nominating promptly upon (and Corporate Governance Committee, as applicable, no later than fifteen in any event within five (5) Business Days following the following) receipt of a written request of from the Company or the Manager . If Company, to cause the Investor fails to designate the Investor Nominee it Director who at any given time is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then disqualified from serving on the Board (if any is qualified pursuant to this Section 2.2(c) to resign from the Board effective immediately or to cause such Investor Director to be nominated removed from the Board in accordance with this Agreement) shall be the proposed Investor NomineeSection 2.2(d). (d) Prior In the event of the resignation, death or removal (including removal for cause) of any Investor Director from the Board (including pursuant to Section 2.2(c)), or the Nomination Termination DateInvestor Director ceases to be a member of the Board at any time and for any reason, the Investor Representative, acting on behalf of the Investors, shall have the exclusive right but not the obligation, such determination to designate a nominee to fill any vacancy created by reason of be made in the death, resignation or removal sole discretion of the Investor Nominee, Representative and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements other provisions of this Section 2.1(d)2.2, to designate in writing a successor Investor Director to the Board to fill the resulting vacancy on the Board, subject to the Qualification Requirement. In the event that the Investor Representative chooses not to designate in writing a director to fill the resulting vacancy on the Board in accordance with the terms and conditions herein, the resulting vacancy shall remain until the Investor Representative designates a successor Investor Director in accordance with this Section 2.2. (e) The Investor Nominee serving For so long as a director shall be entitled to the same rights and privileges applicable to all other members of Investors collectively Beneficially Own the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoingDirector Threshold Amount, the Company shall indemnify, exculpate, and reimburse fees and expenses (i) take all Necessary Action to cause the Investor Director to be or remain a member of the Investor Nominee (including by entering into an indemnification agreement in a form substantially Independent Committee or any similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members independent or special committee of the Board pursuant to (if any) and (ii) not remove the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; Director without cause (provided, that for the foregoing shall not apply where the Investor Nominee becomes aware avoidance of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counseldoubt, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public companyupon such removal for cause, the Investor Representative shall use its best efforts have the right to cause designate a successor in accordance with Section 2.2(d)); it being understood that, without prejudice to or limiting or modifying in any way the then-serving Investor Nominee to promptly resign as a director rights of Atlantic Park or the CompanyInvestors under the Term Loan Credit Agreement, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and Agreement to maintain the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”)Independent Committee. (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. (a) Each As provided in Section 11, it shall be a condition of Purchaser's obligations to effect the Company and transactions contemplated by this Agreement that effective upon the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination DateClosing, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders two members of the Company at which directors are to be elected (or consent in lieu Company's Board of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), Directors shall have resigned and (ii) two individuals designated by the Purchaser (the "PURCHASER NOMINEES") shall have been appointed to nominate, recommend and use its commercially reasonable efforts to solicit fill the vote vacancies in the Board of stockholders Directors of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted created by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)resignations. (b) The Investor shall take all necessary action to cause Upon the Investor termination, removal or resignation of a Purchaser Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine for any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectivelyreason, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor Purchaser shall have the exclusive right to designate appoint a nominee new Purchaser Nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nomineesuch vacancy, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor election of such new Purchaser Nominee to promptly resign the Board through action of the Board of Directors or stockholders, in either case at the discretion of the Board of Directors or stockholders, respectively. Further, if a Purchaser Nominee shall not be elected as a director at any election, then the Company shall use its best efforts to ensure that the Purchaser Nominee obtains a seat on the Board as soon as reasonably possible, whether by appointment of the CompanyPurchaser Nominee to fill an existing or newly created vacancy on the Board, and, if by nomination at the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days next election of any such request, all obligations directors of the Company and or otherwise, provided that this provision shall not restrict the Manager under this Section 2.1 shall terminatediscretion of the Board of Directors or stockholders, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor)respectively. (gc) All obligations Neither the Company nor the Board of Directors will take any action to change the structure, classification or members of the Company Board of Directors (except as provided in Section 6(b) with respect to the Purchaser Nominees) until the issuance of the Preferred Stock and the Manager under this Section 2.1 shall terminateelection by the holder of the Preferred Stock of the two directors entitled to be elected by such holder, and provided that the Investor Preferred Stock shall have no further rights to designate an Investor Nominee (as a replacement therefor)been issued on or before December 31, at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”)1999. (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. (a) Each As provided in Section 11, it shall be a condition of Purchaser's obligations to effect the Company and transactions contemplated by this Agreement that effective upon the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination DateClosing, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders two members of the Company at which directors are to be elected (or consent in lieu Company's Board of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), Directors shall have resigned and (ii) two individuals designated by the Purchaser (the "Purchaser Nominees") shall have been appointed to nominate, recommend and use its commercially reasonable efforts to solicit fill the vote vacancies in the ------------------ Board of stockholders Directors of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted created by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)resignations. (b) The Investor shall take all necessary action to cause Upon the Investor termination, removal or resignation of a Purchaser Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine for any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectivelyreason, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor Purchaser shall have the exclusive right to designate appoint a nominee new Purchaser Nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nomineesuch vacancy, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor election of such new Purchaser Nominee to promptly resign the Board through action of the Board of Directors or stockholders, in either case at the discretion of the Board of Directors or stockholders, respectively. Further, if a Purchaser Nominee shall not be elected as a director at any election, then the Company shall use its best efforts to ensure that the Purchaser Nominee obtains a seat on the Board as soon as reasonably possible, whether by appointment of the CompanyPurchaser Nominee to fill an existing or newly created vacancy on the Board, and, if by nomination at the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days next election of any such request, all obligations directors of the Company and or otherwise, provided that this provision shall not restrict the Manager under this Section 2.1 shall terminatediscretion of the Board of Directors or stockholders, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor)respectively. (gc) All obligations Neither the Company nor the Board of Directors will take any action to change the structure, classification or members of the Company Board of Directors (except as provided in Section 6(b) with respect to the Purchaser Nominees) until the issuance of the Preferred Stock and the Manager under this Section 2.1 shall terminateelection by the holder of the Preferred Stock of the two directors entitled to be elected by such holder, and provided that the Investor Preferred Stock shall have no further rights to designate an Investor Nominee (as a replacement therefor)been issued on or before December 31, at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”)1999. (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. From the Effective Date, Humana shall have the right, but not the obligation, to nominate to the Board one (1) Director so long as Humana Beneficially Owns shares of Common Stock representing at least 5% of the shares of Common Stock then outstanding which Director shall be nominated as a Class I Director; provided, however, that in the event that at any time prior to Humana owning less than 5% of the shares of Common Stock then outstanding, Humana Beneficially Owns more than 30% of the shares of Common Stock then outstanding, Humana shall have the right, but not the obligation, to nominate to the Board two (2) Directors for so long as Humana continues to Beneficially Own more than 30% of the shares of Common Stock then outstanding (such persons, the “Nominees”). Each of the Nominees of Humana shall be (i) reasonably acceptable to the Board of Directors (provided it is agreed that the Nominee on Exhibit A hereto is agreed to be acceptable to the Board of Directors) and (ii) excluded from any meeting of the Board of Directors or any committee thereof (or portion of any such meeting) and recused from any related decisions that any other member of the Board of Directors believes contains confidential information about any other health care payer or about any matters related to the Company’s relationship with Humana. (a) Each In the event that Humana has nominated less than the total number of designees that Humana shall be entitled to nominate pursuant to Section 1, Humana shall have the right, at any time, to nominate such additional designees to which it is entitled, in which case, the Company and the Manager agreesDirectors shall take all necessary corporation action, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors fiduciary duties under Maryland Delaware law), until to (x) enable Humana to nominate and effect the Nomination Termination Dateelection or appointment of such additional individuals, (i) to include in whether by increasing the slate size of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), otherwise and (iiy) to nominate, recommend and use its commercially reasonable efforts designate such additional individuals nominated by Humana to solicit the vote of stockholders of the Company fill such newly created vacancies or to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in fill any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)other existing vacancies. (b) The Investor Company shall take pay all necessary action to cause the Investor reasonable out-of-pocket expenses incurred by any Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result performance of his or her capacity duties as a director and in connection with his or her attendance at any meeting of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancyBoard. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.

Board Nomination Rights. (a) Each On or prior to the date of this Agreement, the Company shall increase the number of directors of the Board in accordance with Article III Section 2 of the Bylaws to twelve (12) directors and elect to the Board of Directors of the Company and (the Manager agrees, to the fullest extent permitted by applicable law “Board”) three (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (13) individual nominees designated by the Investor for election pursuant to this Section 2.1 Sponsor Designator (the “Investor NomineeSponsor Nominees”), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor election of a particular Sponsor Nominee shall be required if the Board determinesreasonably determines in good faith, after consultation with outside legal counsel, that the Investor such Sponsor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, Act or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, case the Investor Sponsor Designator shall withdraw the designation of such Investor Sponsor Nominee and shall designate another individual as the Investor a Sponsor Nominee, whose which replacement will also be subject to the requirements of this Section 2.1(a). (b) . The Investor shall Sponsor Stockholders will take all necessary action to cause the Investor any Sponsor Nominee to consent to all such reference and background checks and to provide such information (including information necessary to determine the Investor such Sponsor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, Board or its Nominating and Corporate Governance Committee, as applicable, Committee may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, Company requests of all other nominees to the Board. As of the date of this Agreement, the Sponsor Designator has designated Xxxxx Xxxxx, Xxxxxxx Xxxx and Xxxx Xxxxxxxxx as the initial Sponsor Nominees, and the Company has determined that such Sponsor Nominees satisfy the requirements of this Section 2.1(a). (b) The Company agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), to include in the slate of nominees recommended by the Board (or the Nominating and Corporate Governance Committee of the Board) for election at any annual or special meeting of stockholders of the Company at which directors are to be elected to the Board (or consent in lieu of meeting) the applicable Sponsor Nominees, and to nominate, recommend and use its reasonable best efforts to solicit the vote of stockholders of the Company to elect to the Board such slate of directors (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that the stockholders of the Company vote in favor of the slate of directors, including the Sponsor Nominee(s)). For any meeting (or consent in lieu of meeting) of the Company’s stockholders for the election of members of the Board, the Board (or the Nominating and Corporate Governance Committee thereof) shall not nominate, in the aggregate, a number of nominees greater than the number of members of the Board. (c) The Investor Sponsor Designator shall provide notice deliver to the Company and the Manager a written notice identifying the Investor each such Sponsor Nominee, together with all Nomination Information about the such proposed Investor Sponsor Nominee as shall be reasonably requested by the Board, Board (or its the Nominating and Corporate Governance Committee, as applicable, Committee thereof) no later than the earlier of (the “Nomination Deadline”) (x) fifteen (15) Business Days following the written request of the Company and (y) the time by which such information is reasonably requested by the Board (or the Manager Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If the Investor Sponsor Designator fails to designate all the Investor Nominee Sponsor Nominees it is entitled to designate prior to such time, then the Investor Nominee Sponsor Nominee(s) previously designated by the Investor Sponsor Designator and then serving on the Board (if any is qualified to be nominated in accordance with this Agreementany) shall be the proposed Investor NomineeSponsor Nominee(s). (i) If a Sponsor Nominee who has been designated by the Sponsor Designator and nominated for election as a director in accordance with this Section 2.1 is not so elected at any meeting of the stockholders of the Company at which directors are to be elected that is a Contested Election, then (x) such Sponsor Nominee shall not be a director for such new term, (y) any such election loss shall not be deemed to create a vacancy that the Sponsor Designator shall have the right to fill pursuant to this Agreement and (z) neither the Company nor the Board will be obligated to increase the size of the Board or take any other action during such new term to elect such Sponsor Nominee or any designated replacement thereof to serve as an additional director during such new term; provided, however, that nothing in the foregoing clauses (x), (y) or (z) shall in any way affect the rights of the Sponsor Designator, in connection with the next meeting of the stockholders of the Company at which directors are to be elected, to designate up to the total number of Sponsor Nominees to which it is entitled pursuant to Section 2.1(a) (subject to Section 2.1(f)); and (ii) if a Sponsor Nominee who has been designated by the Sponsor Designator and nominated for election as a director in accordance with this Section 2.1 is not so elected at any meeting of the stockholders of the Company at which directors are to be elected that is not a Contested Election, then (x) if such Sponsor Nominee is then a director on the Board, such Sponsor Nominee will continue in office as a “holdover” director, but will tender his or her resignation as a director, subject to acceptance thereof by the Board, each in accordance with the Company’s Corporate Governance Guidelines, and if the Board thereafter accepts such resignation, then such resignation will be deemed to create a vacancy that the Sponsor Designator shall have the exclusive right to fill pursuant to Section 2.1(d) below, and the Sponsor Designator agrees that it will fill such vacancy with a Sponsor Nominee other than the Sponsor Nominee who failed to be elected at such meeting of the stockholders of the Company and whose resignation was so accepted, or (y) if such Sponsor Nominee is not then a director on the Board, such election loss will be deemed to create a vacancy that the Sponsor Designator shall have the exclusive right to fill pursuant to Section 2.1(d) below, and the Sponsor Designator agrees that it will designate a new Sponsor Nominee fill such vacancy with a Sponsor Nominee other than the Sponsor Nominee that failed to be so elected. (d) Prior to the Nomination Termination Date, the Investor Sponsor Designator shall have the exclusive right to designate a nominee to fill any vacancy and all vacancies created by reason of the death, resignation (including as described in Section 2.1(e)(i)(ii) above) or removal (in accordance with the Charter) of any Sponsor Nominee (other than the resignation or removal of any Sponsor Nominee as a result of the Investor Nominee, reduction in the number of Sponsor Nominees pursuant to clauses (i) or (ii) of Section 2.1(f) below) and such nominee will be promptly elected to the Board by the Board to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no . If the Sponsor Designator fails to designate a replacement Sponsor Nominee for any such action with respect vacancy prior to the replacement Investor Nominee Nomination Deadline, or if later, the time the Company reasonably requires such information in connection with its next meeting of stockholders at which directors are to be elected, then such directorship shall be required if eliminated by the Board determineswith effect immediately prior to such next meeting. If such directorship shall be so eliminated, after consultation with outside legal counselthe Sponsor Designator shall have the right to designate Sponsor Nominees pursuant to Section 2.1(a) (subject to Section 2.1(f)) to fill such vacancy at the subsequent meeting of stockholders at which directors are to be elected, that and immediately prior to such replacement Investor Nominee has been involved in any meeting the Company shall increase the number of directors of the events enumerated Board in Items 2(d) or (e) accordance with Article III Section 2 of Schedule 13D under the Exchange Act or Item 401(f) Bylaws to create the necessary number of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(dvacancy(ies). (e) The Investor Each Sponsor Nominee serving as on the Board shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a director manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights rights, privileges and privileges compensation applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee Sponsor Nominees (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee Sponsor Nominees with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not Company will prepare and provide, or cause to be subject prepared and provided, to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her Sponsor Nominees (in their capacity as a director of the Company such), any information, and (a) which the Company is financially able access to undertakeany information, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage relating to the Company and its subsidiaries as and when provided to other members of the Board (eother than any information in connection with (x) in which evaluating or negotiating any transaction with a Sponsor Stockholder or any of its Affiliates or (y) business opportunities being pursued by the Company has an interest or reasonable expectancyits subsidiaries, on the one hand, and by a Sponsor Stockholder or its Affiliates, on the other hand). (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director The obligations of the Company has been involved pursuant to this Section 2.1 shall be subject to the following: (i) in any the event that the Sponsor Stockholders Beneficially Own, in the aggregate, a number of Common Shares and Common OP Units representing less than or equal to 50%, but greater than or equal to 30%, of the events enumerated in Items 2(d) or (e) total number of Schedule 13D under Common Shares and Common OP Units issued to the Exchange Act or Item 401(f) of Regulation S-K under Sponsor Stockholders pursuant to the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public companyEquity Issuance, the Investor number of Sponsor Nominees which may be designated by the Sponsor Designator pursuant to this Section 2.1 shall use its best efforts be reduced to two (2) individual nominees, and at the request of the Board, the Sponsor Stockholders shall cause the then-applicable number of Sponsor Nominees then serving Investor Nominee on the Board to promptly resign as a director from the Board (which resigning Sponsor Nominee shall be selected by the Sponsor Designator), following which (A) no more than two (2) Sponsor Nominees shall be serving on the Board and (B) the size of the CompanyBoard shall be reduced correspondingly; (ii) in the event that the Sponsor Stockholders Beneficially Own, in the aggregate, a number of Common Shares and Common OP Units representing less than 30%, but greater than or equal to 15%, of the total number of Common Shares and Common OP Units issued to the Sponsor Stockholders pursuant to the Equity Issuance, the number of Sponsor Nominees which may be designated by the Sponsor Designator pursuant to this Section 2.1 shall be reduced to one (1) individual nominee, and at the request of the Board, the Sponsor Stockholders shall cause the applicable number of Sponsor Nominees then serving on the Board to promptly resign from the Board (which resigning Sponsor Nominees shall be selected by the Sponsor Designator), following which (A) no more than one (1) Sponsor Nominee shall be serving on the Board and (B) the size of the Board shall be reduced correspondingly; and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30iii) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, terminate (and the Investor Sponsor Stockholders shall have no further rights to designate an Investor Nominee any Sponsor Nominees) upon the first to occur of: (as a replacement therefor). (gA) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial OwnersSponsor Stockholders shall Beneficially Own, in the aggregate, of shares a number of Common Stock Shares and Common OP Units representing 10less than 15% or more of the shares of total number Common Stock then outstanding (excluding shares of Shares and Common Stock that are subject OP Units issued to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights Sponsor Stockholders pursuant to acquire shares of Common Stock) the Equity Issuance or (iiB) both (a) Beneficial Owners, in the aggregate, delivery by the Sponsor Designator of shares of Common Stock in an amount that makes them one written notice to the Company irrevocably waiving and terminating all of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of Sponsor Stockholders’ rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) under this Section 2.1 (the date of termination of the obligations of the Company and the Manager under this Section 2.1, 2.1 pursuant to the foregoing clauses (A) or (B) being referred to herein as the “Nomination Termination Date”), and upon such Nomination Termination Date, the Sponsor Stockholders shall cause all Sponsor Nominees then serving on the Board to promptly resign from the Board. (g) Except in accordance with this Section 2.1, the Board shall not seek the removal of a Sponsor Nominee without the prior written consent of the Sponsor Designator. (h) As In addition to any vote or consent of the Board required by applicable law or the Charter or Bylaws, prior to the Nomination Termination Date, any action by the Company to (i) increase the total number of directors comprising the Board to more than a total of twelve (12) directors or (ii) adopt any qualifications of a director to be imposed upon a Sponsor Nominee, other than those required by the Bylaws as of the date hereof or those generally applicable to all directors shall, in each case, require the prior written consent of this Agreementthe Sponsor Designator. (i) The Company shall not amend Article III, Section 15 of the Bylaws without the prior written consent of the Sponsor Designator. In addition, to the maximum extent permitted from time to time by the laws of the State of Maryland, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor NomineeCompany hereby renounces, and the Company and Board shall adopt a resolution renouncing, any interest or expectancy in, or any right to be offered an opportunity to participate in, business opportunities or classes or categories of business opportunities that are developed by or presented to one or more of the Manager have determined Sponsor Nominees, even if the opportunity is one that the Investor Company or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no Sponsor Nominee satisfies shall have any duty to communicate or offer such business opportunity to the requirements Company or any of the Company’s Affiliates. Notwithstanding the foregoing, a Sponsor Nominee who is offered an opportunity expressly in his or her capacity as a director of the Company (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Company. (j) Until such time as the Sponsor Stockholders or their respective Affiliates own, or are entitled to exercise or direct the voting power of in the election of directors, Covered Securities that would entitle the Sponsor Stockholders, in the aggregate, to exercise or direct the exercise of less than 10% of the voting power of the Company’s stock in the election of directors (assuming for this Section 2.1purpose that all Common OP Units held by the Sponsor Stockholders are exchanged for Common Shares), the Company shall not take any action so as to cause the application of Title 3, Subtitle 7 of the Maryland General Corporation Law, or any successor statute, to any Covered Securities Beneficially Owned by the Sponsor Stockholders.

Board Nomination Rights. (a) Each No later than thirty (30) days after the Closing, the Company shall increase the number of directors of the Board in accordance with Article III, Section 2 of the Bylaws to seven (7) directors and elect to the Board of Directors of the Company and (the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the “Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting”) one (1) individual designated by the Investor for election pursuant to this Section 2.1 nominee (the “Investor Security Holder Nominee”) designated by Xxxxxx X. Xxxxxxxx, as the representative of the Security Holders for purposes of this Agreement (the “Security Holder Representative”), and (ii) to nominate, recommend and use its commercially reasonable efforts to solicit fill the vote of stockholders vacancy created by increasing the size of the Company to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee)Board; provided, however, that no such action with respect to the Investor election of a Security Holder Nominee shall be required if the Board determinesreasonably determines in good faith, after consultation with outside legal counsel, that the Investor such Security Holder Nominee (i) has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or (ii) is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, (iii) does not meet the applicable independence standards required by the listing rules of the New York Stock Exchange, and/or (iv) does not have the requisite skill and experience to serve as a director of a publicly-traded company (as such requisite skill and experience is assessed by the Nominating and Corporate Governance Committee), in which case, case the Investor Security Holder Representative shall withdraw the designation of such Investor Security Holder Nominee and shall designate another individual as the Investor a Security Holder Nominee, whose which replacement will also be subject to the requirements of this Section 2.1(a). (b) . The Investor shall Security Holders will take all necessary action to cause the Investor any Security Holder Nominee to consent to all such reference and background checks and to provide such information (including information necessary to determine the Investor such Security Holder Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, Board or its Nominating and Corporate Governance Committee, as applicable, Committee may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, Company requests of all other nominees to the Board. As of the date of this Agreement, the Security Holder Representative has designated Gerald R. Forsythe as the initial Security Holder Nominee, and the Company has determined that such Security Holder Nominee satisfies the requirements of this Section 2.1(a). (b) The Company agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), to include in the slate of nominees recommended by the Board (or the Nominating and Corporate Governance Committee of the Board) for election at any annual or special meeting of stockholders of the Company at which directors are to be elected to the Board (or consent in lieu of meeting) the applicable Security Holder Nominee, and to nominate, recommend and use its reasonable best efforts to solicit the vote of stockholders of the Company to elect to the Board such slate of directors (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that the stockholders of the Company vote in favor of the slate of directors, including the Security Holder Nominee). Notwithstanding anything to the contrary, however, nothing shall prevent the members of the Board from acting in accordance with their respective duties under Maryland law or other applicable law or rule or requirement of the New York Stock Exchange. The Board shall have no obligation to nominate, elect or appoint any Security Holder Nominee if (i) such nomination, election or appointment would violate applicable law or New York Stock Exchange requirements, or result in a breach by the Board of its fiduciary duties to the Company and its stockholders, (ii) the applicable Security Holder Nominee does not have the requisite skill and experience to serve as a director of a publicly-traded company (as such requisite skill and experience is assessed by the Nominating and Corporate Governance Committee), or (iii) the applicable Security Holder Nominee does not meet the applicable independence standards required by the listing rules of the New York Stock Exchange; provided that the foregoing shall not limit the right of the Security Holder Representative to designate an alternative individual as the Security Holder Nominee nominated for election to the Board, subject to the other terms, conditions and provisions of this Article II. (c) The Investor Security Holder Representative shall provide notice deliver to the Company and the Manager a written notice identifying the Investor Security Holder Nominee, together with all Nomination Information about the such proposed Investor Security Holder Nominee as shall be reasonably requested by the Board, Board (or its the Nominating and Corporate Governance Committee, as applicable, Committee thereof) no later than the earlier of (the “Nomination Deadline”) (x) fifteen (15) Business Days following the written request of the Company Company, and (y) the time by which such information is reasonably requested by the Board (or the Manager Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If the Investor Security Holder Representative fails to designate the Investor Security Holder Nominee it is entitled to designate prior to such time, then the Investor Security Holder Nominee previously designated by the Investor Security Holder Representative and then serving on the Board (if any is qualified to be nominated in accordance with this Agreementany) shall be the proposed Investor Security Holder Nominee.. If a Security Holder Nominee who has been designated by the Security Holder Representative and nominated for election as a director in accordance with this Section 2.1 is not so elected at any meeting of the stockholders of the Company at which directors are to be elected, then (x) such Security Holder Nominee shall not be a director for such new term, (y) any such election loss shall not be deemed to create a vacancy that the Security Holder Representative shall have the right to fill pursuant to this Agreement, and (z) neither the Company nor the Board will be obligated to increase the size of the Board or take any other action during such new term to elect such Security Holder Nominee or any designated replacement thereof to serve as an additional director during such new term; provided, however, that nothing in the foregoing clauses (x), (y) or (z) shall in any way affect the rights of the Security Holder Representative, in connection with the next meeting of the stockholders of the Company at which directors are to be elected, to designate the Security Holder Nominee to which it is entitled pursuant to Section 2.1(a) (subject to Section 2.1(f)); and (d) Prior to the Nomination Termination Date, the Investor Security Holder Representative shall have the exclusive right to designate a nominee to fill any vacancy and all vacancies created by reason of the death, resignation or removal (in accordance with the Charter) of the Investor Nominee, Security Holder Nominee and such nominee will be promptly elected to the Board by the Board to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no . If the Security Holder Representative fails to designate a replacement Security Holder Nominee for any such action with respect vacancy prior to the replacement Investor Nominee Nomination Deadline or, if later, the time by which the Company reasonably requires such information in connection with its next meeting of stockholders at which directors are to be elected, then such directorship shall be required if eliminated by the Board determineswith effect immediately prior to such next meeting. If such directorship shall be so eliminated, after consultation with outside legal counselthe Security Holder Representative shall have the right to designate the Security Holder Nominee pursuant to Section 2.1(a) (subject to Section 2.1(f)) to fill such vacancy at the subsequent meeting of stockholders at which directors are to be elected, that and immediately prior to such replacement Investor Nominee has been involved in any meeting the Company shall increase the number of directors of the events enumerated Board in Items 2(d) or (e) accordance with Article III, Section 2 of Schedule 13D under the Exchange Act or Item 401(f) Bylaws to create the necessary number of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(dvacancy(ies). (e) The Investor Security Holder Nominee serving as on the Board shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a director manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights rights, privileges and privileges compensation applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, terminate (and neither the Investor Security Holder Representative nor any other Security Holder shall have no any further rights to designate an Investor Nominee a Security Holder Nominee) upon the first to occur of: (as a replacement therefor), at A) such time as the Investor and its Affiliates are not either (i) Beneficial OwnersSecurity Holders Beneficially Own, in the aggregate, a number of shares of Common Stock representing less than 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, total number of shares of Common Stock in an amount that makes them one (on a fully diluted basis, taking into account all outstanding OP Units), or (B) the delivery by the Security Holder Representative of written notice to the Company irrevocably waiving and terminating all of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of Security Holders’ rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) under this Section 2.1 (the date of termination of the obligations of the Company and the Manager under this Section 2.1, 2.1 pursuant to the foregoing clauses (A) or (B) being referred to herein as the “Nomination Termination Date”), and upon such Nomination Termination Date, the Security Holder Representative shall cause the Security Holder Nominee then serving on the Board to promptly resign from the Board. (hg) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of Except in accordance with this Section 2.1, the Board shall not seek the removal of the Security Holder Nominee without the prior written consent of the Security Holder Representative.

Board Nomination Rights. (a) Each of the The Company and the Manager agrees, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors under Maryland law), until the Nomination Termination Date, (i) to include in the slate of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual the individuals designated by the Investor Xxxxxxxx for election pursuant to this Section 2.1 (each, an “Xxxxxxxx Nominee” and collectively, the “Investor NomineeXxxxxxxx Nominees”), and (ii) to nominate, recommend and use its commercially reasonable best efforts to solicit the vote of stockholders of the Company to elect the Investor Nominee Xxxxxxxx Nominees (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor NomineeXxxxxxxx Nominee(s)); provided, however, that no such action with respect to the Investor a particular Xxxxxxxx Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a). (b) The Investor shall take all necessary action to cause the Investor Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Xxxxxxxx Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor Xxxxxxxx shall withdraw the designation of such replacement Investor Xxxxxxxx Nominee and shall designate another individual as the Investor an Xxxxxxxx Nominee, whose which replacement will also be subject to the requirements of this Section 2.1(d2.1(a). (b) For any meeting (or consent in lieu of meeting) of the Company’s stockholders for the purpose of electing directors, among other purposes, the Board, or its Nominating and Corporate Governance Committee, shall not nominate, in the aggregate, a number of nominees greater than the then-current number of director positions on the Board. (c) Xxxxxxxx will take all necessary action to cause each Xxxxxxxx Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine such Xxxxxxxx Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Company requests of all other nominees to the Board. (d) Xxxxxxxx shall provide notice to the Company identifying each such Xxxxxxxx Nominee, together with all Nomination Information about such proposed Xxxxxxxx Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, no later than the earlier of (i) fifteen Business Days following the written request of the Company and (ii) the time by which such information is reasonably requested by the Board (or the Nominating and Corporate Governance Committee thereof) to be delivered (which time shall be concurrent with the request for such information from and otherwise consistent with the request for such information from the other nominees). If Xxxxxxxx fails to designate all of the Xxxxxxxx Nominees it is entitled to designate prior to such time, then the Xxxxxxxx Nominee(s) previously designated by Xxxxxxxx and then serving on the Board (if any) shall be the proposed Xxxxxxxx Nominee(s). (e) The Investor Nominee serving as a director shall be entitled Prior to the same rights Nomination Termination Date, Xxxxxxxx shall have the exclusive right to designate a nominee to fill any and privileges applicable to all other members vacancies created by reason of the Board generally death, resignation or removal of any Xxxxxxxx Nominee, and such nominee will be promptly elected to which all such members serve until the next annual meeting of the Board are entitledstockholders and until his or her successor is duly elected and qualifies; provided, however, that the Investor no such action with respect to a particular Xxxxxxxx Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of required if the Board pursuant to the Charterreasonably determines, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result of his or her capacity as a director of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancy. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor such Xxxxxxxx Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case Xxxxxxxx shall withdraw the Investor designation of such Xxxxxxxx Nominee and shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as an Xxxxxxxx Nominee, which replacement will also be subject to the Investor Nomineerequirements of this Section 2.1(e). (f) Each Xxxxxxxx Nominee serving as a director shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board, and shall be entitled to the same rights, privileges and compensation applicable to all other members of the Board generally or to which all such members of the Board are entitled. If In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Xxxxxxxx Nominees (including by entering into an Investor Nominee does not resign within thirty indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Xxxxxxxx Nominees with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. (30g) days The obligations of any such requestthe Company pursuant to this Section 2.1 shall be subject to the following: (i) so long as Xxxxxxxx and its Affiliates Own, in the aggregate, shares of Common Stock representing at least 15% of the Outstanding Voting Power, the number of Xxxxxxxx Nominees which may be designated pursuant to this Section 2.1 shall equal the lowest whole number of directors that is at least 40% of the total number of directors; (ii) in the event that Xxxxxxxx and its Affiliates Own, in the aggregate, shares of Common Stock representing less than 15% but greater than or equal to 10% of the Outstanding Voting Power, the number of Xxxxxxxx Nominees which may be designated by Xxxxxxxx pursuant to this Section 2.1 shall be equal to the lowest whole number of directors that is at least 25% of the total number of directors; (iii) in the event that Xxxxxxxx and its Affiliates Own, in the aggregate, shares of Common Stock representing less than 10% but greater than or equal to 5% of the Outstanding Voting Power, the number of Xxxxxxxx Nominees which may be designated by Xxxxxxxx pursuant to this Section 2.1 shall be equal to the lowest whole number of directors that is at least 10% of the total number of directors; and (iv) all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor Xxxxxxxx shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor)any Xxxxxxxx Nominees, at such time as the Investor Xxxxxxxx and its Affiliates are not either (i) Beneficial Ownersshall Own, in the aggregate, of shares of Common Stock representing 10less than 5% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) Outstanding Voting Power (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) . As of the date of this Agreement, the Investor Xxxxxxxx has designated Xxxxxx Xxxxxxx [ ] as the initial Investor NomineeXxxxxxxx Nominees, and the Company and the Manager have has determined that the Investor Nominee satisfies such Xxxxxxxx Nominees satisfy the requirements of this Section 2.1.

Board Nomination Rights. From the Effective Date, Humana shall have the right, but not the obligation, to nominate to the Board one (1) Director so long as Humana Beneficially Owns shares of Common Stock representing at least 5% of the shares of Common Stock then outstanding, which Director shall be nominated as a Class I Director; provided, however, that in the event that at any time prior to Humana owning less than 5% of the shares of Common Stock then outstanding, Humana Beneficially Owns more than 30% of the shares of Common Stock then outstanding, Humana shall have the right, but not the obligation, to nominate to the Board two (2) Directors for so long as Humana continues to Beneficially Own more than 30% of the shares of Common Stock then outstanding (such persons, the “Nominees”). Each of the Nominees of Humana shall be (i) reasonably acceptable to the Board of Directors (provided it is agreed that the Nominee on Exhibit A hereto is agreed to be acceptable to the Board of Directors) and (ii) excluded from any meeting of the Board of Directors or any committee thereof (or portion of any such meeting) and recused from any related decisions that any other member of the Board of Directors believes contains confidential information about any other health care payer or about any matters related to the Company’s relationship with Humana. (a) Each In the event that Humana has nominated less than the total number of designees that Humana shall be entitled to nominate pursuant to Section 1, Humana shall have the right, at any time, to nominate such additional designees to which it is entitled, in which case, the Company and the Manager agreesDirectors shall take all necessary corporation action, to the fullest extent permitted by applicable law (including with respect to any standard of conduct required of directors fiduciary duties under Maryland Delaware law), until to (x) enable Humana to nominate and effect the Nomination Termination Dateelection or appointment of such additional individuals, (i) to include in whether by increasing the slate size of nominees recommended by the Board, or its Nominating and Corporate Governance Committee, as applicable, for election at any annual or special meeting of stockholders of the Company at which directors are to be elected (or consent in lieu of such a meeting) one (1) individual designated by the Investor for election pursuant to this Section 2.1 (the “Investor Nominee”), otherwise and (iiy) to nominate, recommend and use its commercially reasonable efforts designate such additional individuals nominated by Humana to solicit the vote of stockholders of the Company fill such newly created vacancies or to elect the Investor Nominee (which efforts shall, to the fullest extent permitted by applicable law, include the inclusion in fill any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any such meeting of the recommendation of the Board that the stockholders of the Company vote in favor of the Investor Nominee); provided, however, that no such action with respect to the Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that the Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, , in which case, the Investor shall withdraw the designation of such Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(a)other existing vacancies. (b) The Investor Company shall take pay all necessary action to cause the Investor reasonable out-of-pocket expenses incurred by any Nominee to consent to all reference and background checks and to provide such information (including information necessary to determine the Investor Nominee’s independence status as well as information necessary to determine any disclosure obligations of the Company) as the Board, or its Nominating and Corporate Governance Committee, as applicable, may reasonably request in connection with the Company’s disclosure obligations or in connection with the Company’s legal, regulatory or stock exchange requirements (collectively, the “Nomination Information”), which requests shall be of the same type and scope as the Board or the Nominating and Corporate Governance Committee, as applicable, requests of all other nominees to the Board. (c) The Investor shall provide notice to the Company and the Manager identifying the Investor Nominee, together with all Nomination Information about the proposed Investor Nominee as shall be reasonably requested by the Board, or its Nominating and Corporate Governance Committee, as applicable, no later than fifteen Business Days following the written request of the Company or the Manager . If the Investor fails to designate the Investor Nominee it is entitled to designate prior to such time, then the Investor Nominee previously designated by the Investor and then serving on the Board (if any is qualified to be nominated in accordance with this Agreement) shall be the proposed Investor Nominee. (d) Prior to the Nomination Termination Date, the Investor shall have the exclusive right to designate a nominee to fill any vacancy created by reason of the death, resignation or removal of the Investor Nominee, and such nominee will be promptly elected to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualifies; provided, however, that no such action with respect to the replacement Investor Nominee shall be required if the Board determines, after consultation with outside legal counsel, that such replacement Investor Nominee has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case the Investor shall withdraw the designation of such replacement Investor Nominee and shall designate another individual as the Investor Nominee, whose replacement will also be subject to the requirements of this Section 2.1(d). (e) The Investor Nominee serving as a director shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled; provided, that the Investor Nominee shall not be eligible to receive compensation (including equity awards) applicable to unaffiliated non-employee directors. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Nominee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise. The Investor Nominee shall not be subject to the corporate opportunity doctrine and shall be under no obligation to present business opportunities to the Company; provided, that the foregoing shall not apply where the Investor Nominee becomes aware of such business opportunity as a direct result performance of his or her capacity duties as a director and in connection with his or her attendance at any meeting of the Company and (a) which the Company is financially able to undertake, (b) which the Company is not prohibited by contract or applicable law from pursuing or undertaking, (c) which, from its nature, is in the line of the Company’s business, (d) which is of practical advantage to the Company and (e) in which the Company has an interest or reasonable expectancyBoard. (f) Promptly upon the Company’s request at any time after the Nomination Termination Date or a determination by the Board after consultation with outside legal counsel, that an Investor Nominee currently serving as a director of the Company has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall use its best efforts to cause the then-serving Investor Nominee to promptly resign as a director of the Company, and, if the Nomination Termination Date has not occurred, may designate another individual as the Investor Nominee. If an Investor Nominee does not resign within thirty (30) days of any such request, all obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor). (g) All obligations of the Company and the Manager under this Section 2.1 shall terminate, and the Investor shall have no further rights to designate an Investor Nominee (as a replacement therefor), at such time as the Investor and its Affiliates are not either (i) Beneficial Owners, in the aggregate, of shares of Common Stock representing 10% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) or (ii) both (a) Beneficial Owners, in the aggregate, of shares of Common Stock in an amount that makes them one of the three (3) largest Beneficial Owners of shares of Common Stock at such time (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) and (b) Beneficial Owners, in the aggregate, of shares of Common Stock representing 7% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock) (the date of termination of the obligations of the Company and the Manager under this Section 2.1, the “Nomination Termination Date”). (h) As of the date of this Agreement, the Investor has designated Xxxxxx Xxxxxxx as the initial Investor Nominee, and the Company and the Manager have determined that the Investor Nominee satisfies the requirements of this Section 2.1.