Common use of Board Number; Board Nomination Clause in Contracts

Board Number; Board Nomination. (a) For so long as the Blackstone Group beneficially owns a number of shares of Common Stock that represents at least 40% of the Original Amount of the Blackstone Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to stockholders of the Company (the “Stockholders”) for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected, one individual identified in advance by the Blackstone Group (the “Blackstone Nominee”). (b) For so long as the XX Xxxx Group beneficially owns an amount of Common Stock that represents at least 40% of the Original Amount of the XX Xxxx Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the XX Xxxx Group (the “XX Xxxx Nominee”). (c) For so long as the Carlyle Group beneficially owns an amount of Common Stock that represents at least 40% of the Original Amount of the Carlyle Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the Carlyle Group (the “Carlyle Nominee”). (d) For so long as the Centerbridge Group beneficially owns an amount of Common Stock that represents at least 40% of the Original Amount of the Centerbridge Group (as such number may be adjusted may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the Centerbridge Group (the “Centerbridge Nominee,” and together with the Blackstone Nominee, the XX Xxxx Nominee and the Carlyle Nominee, the “Investor Nominees” and each, an “Investor Nominee”). (e) For so long as Kanas serves as the Chief Executive Officer of the Company, the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, two individuals (one of whom shall be Kanas) identified in advance by Kanas (the “Kanas Nominees”). (f) Vacancies arising through the death, resignation or removal of an Investor Nominee or Kanas Nominee, as applicable, who were nominated to the Board pursuant to this Section 2, may be filled by the Board only with an Investor Nominee or Kanas Nominee, as applicable, and the director so chosen shall hold office until the next election and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. (g) The Company shall use its best efforts to ensure that at all times following the date hereof and while this Agreement remains in effect that the Board shall be comprised of Investor Nominees nominated by each Investor Group which is then entitled to nominate an Investor Nominee pursuant to this Section 2, Kanas Nominees to the extent Kanas is then entitled to nominate Kanas Nominees pursuant to this Section 2 and only such other directors as are then eligible to serve in accordance with this Agreement and are elected or appointed pursuant to applicable law and the Certificate of Incorporation and Bylaws. Each Investor Nominee and Kanas Nominee shall be the nominees of the Company and the Nominating and Governance Committee of the Board and the Company shall solicit proxies for each of such nominees to the same extent it does for any other nominees of the Company to the Board. (h) Notwithstanding the provisions of this Section 2, neither Kanas nor any Investor Group shall be entitled to designate a Person as a nominee to the Board upon a written determination by the Nominating and Corporate Governance Committee of the Company (which determination shall set forth in writing reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. In such an event, Kanas or such Investor Group shall be entitled to select a Person as a replacement nominee and the Company shall use its best efforts to cause such Person to be nominated as the Kanas Nominee or the Investor Nominee of the relevant Investor Group, as the case may be, at the same meeting (or, if permitted, pursuant to the same action by written consent of the Stockholders) as such initial Person was to be nominated. Other than with respect to the issue set forth in the preceding sentence, neither the Company nor any other party to this Agreement shall have the right to object to any Investor Nominee or Kanas Nominee. (i) So long as an Investor Group holds an amount of Common Stock that represents at least 40% of the Original Amount of such Investor Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall notify such Investor Group in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders (and the Company shall deliver such notice at least 60 days (or such shorter period to which any Investor Group consents, which consent need not be in writing) prior to such expected mailing date or such earlier date as may be specified by the Company reasonably in advance of such earlier delivery date on the basis that such earlier delivery is necessary so as to ensure that such nominee may be included in such proxy materials at the time such proxy materials are mailed). The Company shall provide each such Investor Group with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Investor Nominee of such Investor Group or the rights and obligations provided under this Agreement and to discuss any such comments with the Company. (j) Without limiting the nomination rights set forth above, and in addition thereto, for so long as an Investor Group holds a number of shares of Common Stock that represents at least 5% of the outstanding Common Stock, such Investor Group shall have the right, exercisable by delivering written notice to the Company, to designate a non-voting observer to attend any meetings of the Board (or committees thereof); provided, however, that the chairperson of such meeting shall have the right to cause any non-voting observer to leave any such meeting of the Board (or committee thereof) for such period as the chairperson of such meeting may specify. Notice of meetings of the Board (or committees thereof) shall be furnished to each non-voting observer no later than, and using the same form of communication as, notice of meetings of the Board are furnished to directors in accordance with the Bylaws. (k) In the event that any Investor Group loses its respective right to nominate an Investor Nominee pursuant to this Agreement by virtue of ceasing to hold the requisite number of shares of Common Stock, such Investor Group shall use its best efforts to cause its Investor Nominee to resign from the Board immediately prior to such time as a replacement director is nominated or elected by the Board or the Company’s stockholders. In the event Kanas shall cease to be the Chief Executive Officer of the Company or any of its Subsidiaries, then Kanas shall resign from the Board and the Company and Kanas shall use their respective best efforts to cause the other Kanas Nominee to immediately resign from the Board. (l) So long as this Agreement shall remain in effect, subject to applicable legal requirements, the Bylaws and the Certificate of Incorporation shall accommodate and be subject to and not in any respect conflict with the rights and obligations set forth herein.

Board Number; Board Nomination. (a) For so long as the Blackstone FFL Group beneficially owns a number of shares of Common Stock that represents at least 40the lesser of 25% of the Original Amount of the Blackstone FFL Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization)) or 4.9% of the shares of Common Stock and other securities of the Company entitled to vote together with the Common Stock as a single class of all matters with respect to which the Common Stock is entitled to vote, the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to stockholders of the Company (the “Stockholders”) for election as a Class III director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or by which Class III directors of the Company are to be elected, one individual identified in advance by the Blackstone FFL Group (the “Blackstone FFL Nominee”). (b) For so long as the XX Xxxx Harvest Group beneficially owns an amount of Common Stock that represents at least 40the lesser of 25% of the Original Amount of the XX Xxxx Harvest Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization)) or 4.9% of the shares of Common Stock and other securities of the Company entitled to vote together with the Common Stock as a single class of all matters with respect to which the Common Stock is entitled to vote, the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a Class II director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which Class II directors of the Company are to be elected, one individual identified in advance by the XX Xxxx Harvest Group (the “XX Xxxx Harvest Nominee”). (c) For so long as the Carlyle Pine Brook Group beneficially owns an amount of Common Stock that represents at least 40the lesser of 25% of the Original Amount of the Carlyle Pine Brook Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization)) or 4.9% of the shares of Common Stock and other securities of the Company entitled to vote together with the Common Stock as a single class of all matters with respect to which the Common Stock is entitled to vote, the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a Class I director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which Class I directors of the Company are to be elected, one individual identified in advance by the Carlyle Pine Brook Group (the “Carlyle Pine Brook Nominee”). (d) For so long as the Centerbridge Group beneficially owns an amount of Common Stock that represents at least 40% of the Original Amount of the Centerbridge Group (as such number may be adjusted may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the Centerbridge Group (the “Centerbridge Nominee,” and together with the Blackstone FFL Nominee, the XX Xxxx Nominee and the Carlyle Harvest Nominee, the “Investor Nominees” and each, an “Investor Nominee”). (ed) For so long The Investor Nominees designated hereunder shall be nominated to serve as Kanas serves a Class I, Class II or Class III director (as defined in the Company’s Certificate of Formation) as the Chief Executive Officer case may be. The initial term of each Class I, Class II and Class III director shall expire as set forth in the Company, the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee ’s Certificate of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, two individuals (one of whom shall be Kanas) identified in advance by Kanas (the “Kanas Nominees”). (f) Formation. Vacancies arising through the death, resignation or removal of an Investor Nominee or Kanas Nominee, as applicable, who were was nominated to the Board pursuant to this Section 2, may be filled by the Board only with an a replacement Investor Nominee or Kanas Nominee, as applicable, chosen by the relevant Investor Group and the director so chosen shall hold office until the next election for the class of director as the director whose termination of services as a director created such vacancy and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. (ge) The Company shall use its best efforts to ensure that at all times following the date hereof and while this Agreement remains in effect that the Board shall be comprised of Investor Nominees nominated by each Investor Group which is then entitled to nominate an Investor Nominee pursuant to this Section 2, Kanas Nominees to the extent Kanas is then entitled to nominate Kanas Nominees pursuant to this Section 2 and only such other directors as are then eligible to serve in accordance with this Agreement and are elected or appointed pursuant to applicable law and the Certificate of Incorporation Formation and Bylaws. Each Investor Nominee and Kanas Nominee shall be the nominees of the Company and the Nominating and Governance Committee of the Board and the Company shall solicit proxies for each of such nominees to the same extent it does for any other nominees of the Company to the Board. (hf) Notwithstanding the provisions of this Section 2, neither Kanas nor any Investor Group shall not be entitled to designate a Person as a nominee to the Board upon a written determination by the Nominating and Corporate Governance Committee of the Company (which determination shall set forth in writing reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. In such an event, Kanas or such Investor Group shall be entitled to select a Person as a replacement nominee and the Company shall use its best efforts to cause such Person to be nominated as the Kanas Nominee or the Investor Nominee of the relevant Investor Group, as the case may be, at the same meeting (or, if permitted, pursuant to the same action by written consent of the Stockholders) as such initial Person was to be nominated. Other than with respect to the issue set forth in the preceding sentence, neither the Company nor any other party to this Agreement shall have the right to object to any Investor Nominee or Kanas Nominee. (ig) So long as an Investor Group holds an amount of Common Stock that represents at least 40the lesser of 25% of the Original Amount of such Investor Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization)) or 4.9% of the shares of Common Stock and other securities of the Company entitled to vote together with the Common Stock as a single class of all matters with respect to which the Common Stock is entitled to vote, the Company shall notify such Investor Group in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders (and the Company shall deliver such notice at least 60 days (or such shorter period to which any Investor Group consents, which consent need not be in writing) prior to such expected mailing date or such earlier date as may be specified by the Company reasonably in advance of such earlier delivery date on the basis that such earlier delivery is necessary so as to ensure that such nominee may be included in such proxy materials at the time such proxy materials are mailed). The Company shall provide each such Investor Group with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Investor Nominee of such Investor Group or the rights and obligations provided under this Agreement and to discuss any such comments with the Company. (jh) Without limiting the nomination rights set forth above, and in addition thereto, for so So long as an Investor Group holds a number of shares an amount of Common Stock that represents at least 53.0% of the outstanding Common Stock, if such Investor Group shall lose its respective right to nominate an Investor Nominee pursuant to this Agreement by virtue of ceasing to hold the requisite number of shares of Common Stock, such Investor Group shall have the right, exercisable by delivering written notice to the Company, to designate a non-voting observer to attend any meetings of the Board (or committees thereof) and of the Bank Board (or any committee thereof); provided, however, that the chairperson of such meeting shall have the right to cause any non-voting observer to leave any such meeting of the Board (or committee thereof) or the Bank Board for such period as the chairperson of such meeting may specify, including as necessary to comply with rules or regulatory guidance regarding confidential supervisory information. Each such Investor Group shall have the right to remove and replace its non-voting observer at any time and from time to time. Notice of meetings of the Board (or committees thereof) shall be furnished to each non-voting observer no later than, and using the same form of communication as, notice of meetings of the Board are furnished to directors in accordance with the Bylaws. (ki) In the event that any Investor Group loses its respective right to nominate an Investor Nominee pursuant to this Agreement by virtue of ceasing to hold the requisite number of shares of Common Stock, such Investor Group shall use its best efforts to cause its Investor Nominee to resign from the Board immediately prior to such time as a replacement director is nominated or elected by the Board or the Company’s stockholders. In . (j) If requested in writing by any Investor Group that holds an amount of Common Stock that represents at least the event Kanas shall cease lesser of 25% of the Original Amount of such Investor Group (as such number may be adjusted from time to be time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Chief Executive Officer Company’s capitalization) or 4.9% of the shares of Common Stock and other securities of the Company or any entitled to vote together with the Common Stock as a single class of its Subsidiariesall matters with respect to which the Common Stock is entitled to vote, then Kanas shall resign from the Board and the Company and Kanas shall use their respective best efforts take such actions as shall be necessary in order to cause appoint or elect one individual designated by such Investor Group to the other Kanas Nominee to immediately resign from the Bank Board. (lk) So long as this Agreement shall remain in effect, subject to applicable legal requirements, the Bylaws and the Certificate of Incorporation Formation and the organizational documents applicable to the Bank Board shall accommodate and be subject to and not in any respect conflict with the rights and obligations set forth herein.

Board Number; Board Nomination. (a) For so long as the Blackstone Group beneficially owns a aggregate of (i) the number of shares of Common Stock beneficially owned by the Blackstone Group, plus (ii) the number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock, if any, owned by the Blackstone Group (without regard to any limitations on conversion that represents may apply pursuant to the terms of the Preferred Stock) together represent at least 40% of the Original Amount of the Blackstone Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to stockholders of the Company (the “Stockholders”) for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected, one individual identified in advance by the Blackstone Group (the “Blackstone Nominee”). (b) For so long as the aggregate of (i) the number of shares of Common Stock beneficially owned by the XX Xxxx Group, plus (ii) the number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock, if any, owned by the XX Xxxx Group beneficially owns an amount (without regard to any limitations on conversion that may apply pursuant to the terms of Common Stock that represents the Preferred Stock) together represent at least 40% of the Original Amount of the XX Xxxx Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the XX Xxxx Group (the “XX Xxxx Nominee”). (c) For so long as the Carlyle Group beneficially owns an amount aggregate of (i) the number of shares of Common Stock beneficially owned by the Carlyle Group, plus (ii) the number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock, if any, owned by the Carlyle Group (without regard to any limitations on conversion that represents may apply pursuant to the terms of the Preferred Stock) together represent at least 40% of the Original Amount of the Carlyle Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the Carlyle Group (the “Carlyle Nominee”). (d) For so long as the Centerbridge Group beneficially owns an amount aggregate of (i) the number of shares of Common Stock beneficially owned by the Centerbridge Group, plus (ii) the number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock, if any, owned by the Centerbridge Group (without regard to any limitations on conversion that represents may apply pursuant to the terms of the Preferred Stock) together represent at least 40% of the Original Amount of the Centerbridge Group (as such number may be adjusted may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, one individual identified in advance by the Centerbridge Group (the “Centerbridge Nominee,” and together with the Blackstone Nominee, the XX Xxxx Nominee and the Carlyle Nominee, the “Investor Nominees” and each, an “Investor Nominee”). (e) For so long as Kanas serves as the Chief Executive Officer of the Company, the Company shall, and shall use its best efforts to cause the Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to, include in the slate of nominees recommended to Stockholders for election as a director at any annual or special meeting of the Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or pursuant to which directors of the Company are to be elected, two individuals (one of whom shall be Kanas) identified in advance by Kanas (the “Kanas Nominees”). (f) Vacancies arising through the death, resignation or removal of an Investor Nominee or Kanas Nominee, as applicable, who were nominated to the Board pursuant to this Section 2, may be filled by the Board only with an Investor Nominee or Kanas Nominee, as applicable, and the director so chosen shall hold office until the next election and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. (g) The Company shall use its best efforts to ensure that at all times following the date hereof and while this Agreement remains in effect that the Board shall be comprised of Investor Nominees nominated by each Investor Group which is then entitled to nominate an Investor Nominee pursuant to this Section 2, Kanas Nominees to the extent Kanas is then entitled to nominate Kanas Nominees pursuant to this Section 2 and only such other directors as are then eligible to serve in accordance with this Agreement and are elected or appointed pursuant to applicable law and the Certificate of Incorporation and Bylaws. Each Investor Nominee and Kanas Nominee shall be the nominees of the Company and the Nominating and Governance Committee of the Board and the Company shall solicit proxies for each of such nominees to the same extent it does for any other nominees of the Company to the Board. (h) Notwithstanding the provisions of this Section 2, neither Kanas nor any Investor Group shall be entitled to designate a Person as a nominee to the Board upon a written determination by the Nominating and Corporate Governance Committee of the Company Board (which determination shall set forth in writing reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. In such an event, Kanas or such Investor Group shall be entitled to select a Person as a replacement nominee and the Company shall use its best efforts to cause such Person to be nominated as the Kanas Nominee or the Investor Nominee of the relevant Investor Group, as the case may be, at the same meeting (or, if permitted, pursuant to the same action by written consent of the Stockholders) as such initial Person was to be nominated. Other than with respect to the issue set forth in the second preceding sentence, neither the Company nor any other party to this Agreement shall have the right to object to any Investor Nominee or Kanas Nominee. (i) So long as an Investor Group holds an amount the aggregate of (i) the number of shares of Common Stock that represents owned by an Investor Group, plus (ii) the number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock, if any, owned by such Investor Group (without regard to any limitations upon conversion set forth in the terms of such Preferred Stock), together represent at least 40% of the Original Amount of such Investor Group (as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization), the Company shall notify such Investor Group in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders (and the Company shall deliver such notice at least 60 days (or such shorter period to which any Investor Group consents, which consent need not be in writing) prior to such expected mailing date or such earlier date as may be specified by the Company reasonably in advance of such earlier delivery date on the basis that such earlier delivery is necessary so as to ensure that such nominee may be included in such proxy materials at the time such proxy materials are mailed). The Company shall provide each such Investor Group with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Investor Nominee of such Investor Group or the rights and obligations provided under this Agreement and to discuss any such comments with the Company. (j) Without limiting the nomination rights set forth above, and in addition thereto, for so long as an Investor Group holds a the aggregate of (i) the number of shares of Common Stock that represents owned by an Investor Group, plus (ii) the number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock, if any, owned by such Investor Group (without regard to any limitations upon conversion set forth in the terms of such Preferred Stock), together represent at least 5% of the outstanding Common Stock after giving effect to such conversion and assuming the conversion of all other outstanding shares of Preferred Stock, such Investor Group shall have the right, exercisable by delivering written notice to the Company, to designate a non-voting observer to attend any meetings of the Board (or committees thereof); provided, however, that the chairperson of such meeting shall have the right to cause any non-voting observer to leave any such meeting of the Board (or committee thereof) for such period as the chairperson of such meeting may specify. Notice of meetings of the Board (or committees thereof) shall be furnished to each non-voting observer no later than, and using the same form of communication as, notice of meetings of the Board are furnished to directors in accordance with the Bylaws. (k) In the event that any Investor Group loses its respective right to nominate an Investor Nominee pursuant to this Agreement by virtue of ceasing to hold the requisite number of shares of Common Stock and Preferred Stock, such Investor Group shall use its best efforts to cause its Investor Nominee to resign from the Board immediately prior to such time as a replacement director is nominated or elected by the Board or the Company’s stockholders. In the event Kanas shall cease to be the Chief Executive Officer of the Company or any of its Subsidiaries, then Kanas shall resign from the Board and the Company and Kanas shall use their respective best efforts to cause the other Kanas Nominee to immediately resign from the Board. (l) So long as this Agreement shall remain in effect, subject to applicable legal requirements, the Bylaws and the Certificate of Incorporation shall accommodate and be subject to and not in any respect conflict with the rights and obligations set forth herein.