Common use of Investor Director; Observer Clause in Contracts

Investor Director; Observer. (a) For so long as the 20.0% Beneficial Ownership Requirement is satisfied, the Investor shall be entitled to designate for nomination one (1) nominee of the Board, subject to such Person’s satisfaction of the Director Qualification Standards, the provisions of Section 2.03 and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”). (b) In the event that the Investor nominates an Investor Nominee, the Company shall (i) include the Investor Nominee in its slate of nominees for election to the Board at each annual or special meeting of the stockholders of the Company at which Directors are to be elected and at which such Investor Nominee’s seat is subject to election and (ii) recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee at any such annual or special meeting of the Company’s stockholders, subject to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee is eligible to CPAM: 10212011.2 be appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Director. For the avoidance of doubt, the Investor shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in the By-laws so long as the Investor provides reasonable advance notice to the Company of the Investor Nominee prior to the mailing of the proxy statement by the Company. (c) If an Investor Nominee then serving as a Director, if any, (the “Investor Director”) ceases to serve on the Board for any reason (other than pursuant to Section 2.02) during his or her term (until such time as the 20.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor Nominee. (d) In the absence of any nomination from the Investor at a time when it has the right to nominate a director as specified above, the Investor Director previously nominated by the Investor and then serving (if any) shall be the Investor Nominee (subject to the satisfaction of the qualification requirements for an Investor Nominee set forth herein).

Investor Director; Observer. (a) For Unless and until there has occurred a Fall-Away of Investor Board Rights, (i) for so long as the 20.05.0% Aggregate Beneficial Ownership Requirement is satisfied, the FP Investor Parties shall be entitled to designate for nomination one up to such number of Persons to serve as Investor Directors such that the aggregate number of Investor Directors will equal the product of (1x) nominee the percentage of the total voting power for the regular election of directors of the Company beneficially owned by the FP Investor Parties and (y) the number of directors then on the Board; provided, however, that such product shall be rounded up to the nearest whole number of directors, subject to such Person’s satisfaction of the Director Qualification StandardsStandards and (ii) at any time that no Investor Director is a member of the Board, the provisions of Section 2.03 and FP Investor Parties shall be entitled to designate one (1) Observer to the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”)Board. (b) In the event that the FP Investor nominates an Parties designate any Investor NomineeDirector Designee(s) pursuant to clause (a)(i) above, the Company shall (i) if necessary, cause the Board, as promptly as reasonably practicable (and in any event within three Business Days of such designation), to increase the size of the Board by such number of Investor Director Designee(s) and to fill the resulting vacancy with such Investor Director Designee(s), (ii) automatically and without further action by the Board, include such Investor Director Designee(s) on the Board, (iii) include such Investor Nominee Director Designee(s) in its slate of nominees for election to the Board at each annual or special meeting of the stockholders of the Company at which Directors directors are to be elected and at which the seat held by such Investor Nominee’s seat Director Designee(s) is subject to election and (iiiv) recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee Director Designee(s) at any such annual or special meeting of the Company’s stockholders and shall use its reasonable best efforts to cause such Investor Director Designee(s) to be elected by the stockholders, subject in each case to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee Director Designee is eligible to CPAM: 10212011.2 be designated, appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Directorsuch designation. For the avoidance of doubt, the FP Investor Parties shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in by the By-laws Company so long as the FP Investor provides Parties provide reasonable advance notice to the Company of the Investor Nominee Director Designee prior to the mailing of the proxy statement by the CompanyCompany (provided, that the Company shall provide reasonable advance notice to the FP Investor Parties of the expected mailing date). (c) In the event that the FP Investor Parties designate an Observer pursuant to Section 2.03(a) or an Observer of a Board committee pursuant to Section 2.02(c), such Observer shall (i) have the right to receive (when and as received by the Directors of the Board or members of such committee) due notice of and to attend (whether in person or by telephone) and participate in discussions at (but not vote on any matters on which the Directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, and (ii) have the right to receive copies of all documents and other information, including minutes, consents, business plans, presentation materials, budgets and financial information furnished generally to members of the Board and all committees thereof when and as received by the members of the Board or committee thereof, as applicable; provided, however, that the Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof upon the vote of a majority of the Directors or members of such committee, as applicable, if (x) such exclusion is reasonably necessary to preserve the attorney-client privilege, (y) the Company has received advice of legal counsel that if the Observer obtained such information it would result in a conflict of interest or (z) the Company has received advice of legal counsel that providing the Observer such information is prohibited under applicable Laws; provided, further, that at any time that the FP Investor Parties are not entitled to designate for nomination an Investor Director Designee pursuant to Section 2.03(a)(i) due to the FP Investor Parties’ failure to satisfy the 5.0% Aggregate Beneficial Ownership Requirement, the Company reserves the right to exclude the Observer on any committee of the Board from access to any committee material or committee meeting or portion thereof upon the vote of a majority of the members of such committee if, in the good faith reasonable judgment of such committee members, such exclusion is in the best interests of the Company and its stockholders; provided, further, that the Observer appointed, from time to time by the FP Investor Parties shall hold all Confidential Information disclosed at any meeting of the Board or in connection with any consent of the Board, in accordance with the provisions of Section 5.02. The Company shall use its good faith efforts to provide advance written notice to the Observer of any intent to withhold information from such Observer or to exclude such Observer from attending any meeting or portion thereof in accordance with this Section 2.03(c), together with a general description of the information or materials that has been withheld to the extent that providing such description is not reasonably expected to either jeopardize the attorney-client privilege to be preserved or result in the conflict to be avoided. (d) Without the prior written consent of the FP Investor Parties, until such time as the Fall-Away of the Investor Board Rights has occurred, the Board shall not remove any Investor Director or Observer from his or her respective position (subject to Section 2.04). The FP Investor Parties shall have the sole right to remove any Investor Director or Observer at any time and to nominate, designate or appoint, as applicable, any replacement or successor thereof. (e) If an Investor Nominee then serving as a Director, if any, (the “Investor Director”) Director ceases to serve on the Board for any reason (other than pursuant to Section 2.022.04) during his or her term (until such time as there has occurred a Fall-Away of Investor Board Rights or the 20.05.0% Aggregate Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor NomineeDirector Designee and appoint such Investor Director to any committee of the Board requested by the FP Parties in accordance with Section 2.02, subject to satisfaction of the applicable Committee Qualification Requirements. (df) In Unless and until there has occurred a Fall-Away of Investor Board Rights or the absence 5.0% Aggregate Beneficial Ownership Requirement is not satisfied, upon the written request of any nomination from the FP Investor Parties, the Board shall cause the Company to call a special meeting of the holders of Series B Preferred Stock for the purpose of electing the Investor Directors at a such time when it has and location as the right FP Investor Parties may reasonably request (subject to nominate a director as specified aboveapplicable Law), in addition to designation by written request of the FP Investor Parties. (g) For the avoidance of doubt, the Investor Director previously nominated by Directors and Observer shall be entitled to travel and expense reimbursement for their reasonable and documented out-of-pocket expenses incurred in connection with travelling to and from meetings of the Board and/or any committee of the Board. In addition, (x) the Investor and then serving (if any) Directors shall be entitled to enter into a customary indemnification agreement with the Company on terms that are, in the event that the Company has entered into any such agreement with another non-employee Director, no less favorable than that provided to such other non-employee Director and in any event no less favorable than as in effect as of the Signing Date, and (y) the Company shall maintain in full force and effect directors’ and officers’ liability insurance containing terms that are reasonably satisfactory to the FP Investor Parties. Each Investor Director shall be covered as an insured director, in such a manner as to provide each Investor Director in his or her capacity as a Director with rights and benefits under all directors’ and officers’ insurance policies no less favorable than those provided to any other non-employee Directors. The Company acknowledges and agrees that the Company is the indemnitor of first resort with respect to any Investor Related Party who is an officer, director or other fiduciary of the Company and its Subsidiaries (i.e., its obligations to such Person are primary and any obligation of any other Persons to which such Investor Director or its Affiliates may have rights to advancement of expenses or to indemnification for the same expenses or liabilities incurred by such Investor Related Party are secondary). (h) Unless and until there has occurred a Fall-Away of Investor Board Rights, for so long as the 5.0% Aggregate Beneficial Ownership Requirement is satisfied, and for so long as there is any Investor Director on the Board, a quorum of the Board shall require the Investor Nominee (subject to the satisfaction Director be present at such meeting of the qualification requirements for an Investor Nominee set forth herein)Board.

Investor Director; Observer. (a) For Unless and until there has occurred a Fall-Away of Investor Board Rights, (i) for so long as (x) the 20.025.0% Beneficial Ownership Requirement is satisfied and (y) the 5.0% Aggregate Beneficial Ownership Requirement is satisfied, the FP Investor Parties shall be entitled (A) to designate for nomination one (1) nominee of to serve as the BoardInvestor Director Designee, subject to such Person’s satisfaction of the Director Qualification Standards, and (B) to designate one (1) Observer to the provisions of Section 2.03 Board and (ii) for so long as the 25.0% Beneficial Ownership Requirement is not satisfied or the 5.0% Aggregate Beneficial Ownership Requirement is not satisfied and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person10.0% Beneficial Ownership Requirement is satisfied, the “FP Investor Nominee”)Parties shall be entitled to designate one (1) Observer to the Board. (b) In the event that the FP Investor nominates an Parties nominate any Investor NomineeDirector Designee pursuant to clause (a)(i) above, the Company shall (i) include the Investor Nominee Director Designee in its slate of nominees for election to the Board at each annual or special meeting of the stockholders of the Company at which Directors directors are to be elected and at which such the seat held by the Investor Nominee’s seat Director Designee is subject to election and (ii) recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee Director Designee at any such annual or special meeting of the Company’s stockholders and shall use its reasonable best efforts to cause such Investor Director Designee to be elected by the stockholders, subject in each case to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee Director Designee is eligible to CPAM: 10212011.2 be appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Directorsuch designation. For the avoidance of doubt, the FP Investor Parties shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in by the By-laws Company so long as the FP Investor provides Parties provide reasonable advance notice to the Company of the Investor Nominee Director Designee prior to the mailing of the proxy statement by the CompanyCompany (provided, that the Company shall provide reasonable advance notice to the FP Investor Parties of the expected mailing date). (c) In the event that the FP Investor Parties designate an Observer pursuant to Section 2.03(a) or an Observer of a Board committee pursuant to Section 2.02(c), such Observer shall (i) have the right to receive (when and as received by the Directors of the Board or members of such committee) due notice of and to attend (whether in person or by telephone) and participate in discussions at (but not vote on any matters on which the Directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, and (ii) have the right to receive copies of all documents and other information, including minutes, consents, business plans, presentation materials, budgets and financial information furnished generally to members of the Board and all committees thereof when and as received by the members of the Board or committee thereof, as applicable; provided, however, that the Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof upon the vote of a majority of the Directors or members of such committee, as applicable, if (x) such exclusion is reasonably necessary to preserve the attorney-client privilege, (y) the Company has received advice of legal counsel that if the Observer obtained such information it would result in a conflict of interest or (z) the Company has received advice of legal counsel that providing the Observer such information is prohibited under applicable Laws; provided, further, that at any time that the FP Investor Parties are not entitled to designate for nomination an Investor Director Designee pursuant to Section 2.03(a)(i) due to the FP Investor Parties’ failure to satisfy clause (x) or (y), the Company reserves the right to exclude the Observer on any committee of the Board from access to any committee material or committee meeting or portion thereof upon the vote of a majority of the members of such committee if, in the good faith reasonable judgment of such committee members, such exclusion is in the best interests of the Company and its stockholders; provided, further, that the Observer appointed, from time to time by the FP Investor Parties shall hold all Confidential Information disclosed at any meeting of the Board or in connection with any consent of the Board, in accordance with the provisions of Section 5.02. The Company shall use its good faith efforts to provide advance written notice to the Observers of any intent to withhold information from such Observer or to exclude such Observer from attending any meeting or portion thereof in accordance with this Section 2.03(c), together with a general description of the information or materials that has been withheld to the extent that providing such description is not reasonably expected to either jeopardize the attorney-client privilege to be preserved or result in the conflict to be avoided. (d) Without the prior written consent of the FP Investor Parties, until such time as the Fall-Away of the Investor Board Rights has occurred, the Board shall not remove any Investor Director or Observer from his or her respective position (subject to Section 2.04). The FP Investor Parties shall have the sole right to remove any Investor Director or Observer at any time and to nominate, designate or appoint, as applicable, any replacement or successor thereof. (e) If an Investor Nominee then serving as a Director, if any, (the “Investor Director”) Director ceases to serve on the Board for any reason (other than pursuant to Section 2.022.04) during his or her term (until such time as the 20.025.0% Beneficial Ownership Requirement is not satisfied or the 5.0% Aggregate Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor NomineeDirector Designee and appoint such Investor Director to the Compensation Committee, subject to satisfaction of the applicable Committee Qualification Requirements. (df) In Until such time as the absence 25.0% Beneficial Ownership Requirement is not satisfied or the 5.0% Aggregate Beneficial Ownership Requirement is not satisfied, upon the written request of any nomination from the FP Investor Parties, the Board shall cause the Company to call a special meeting of the holders of Series A Preferred Stock for the purpose of electing the Investor Director at a such time when it has and location as the right FP Investor Parties may reasonably request (subject to nominate a director as specified aboveapplicable Law), in addition to designation by written request of the FP Investor Parties. (g) For the avoidance of doubt, the Investor Director previously nominated by and Observer shall be entitled to travel and expense reimbursement for their reasonable and documented out-of-pocket expenses incurred in connection with travelling to and from meetings of the Board and/or any committee of the Board. In addition, (x) the Investor and then serving (if any) Director shall be entitled to enter into a customary indemnification agreement with the Investor Nominee Company on terms that are, in the event that the Company has entered into any such agreement with another non-employee Director, no less favorable than that provided to such other non-employee Director and in any event no less favorable than as in effect as of the Signing Date, and (subject y) the Company shall maintain in full force and effect directors’ and officers’ liability insurance containing terms that are reasonably satisfactory to the satisfaction FP Investor Parties. Each Investor Director shall be covered as an insured director, in such a manner as to provide each Investor Director in his or her capacity as a Director with rights and benefits under all directors’ and officers’ insurance policies no less favorable than those provided to any other non-employee Directors. The Company acknowledges and agrees that the Company is the indemnitor of first resort with respect to any Investor Related Party who is an officer, director or other fiduciary of the qualification requirements Company and its Subsidiaries (i.e., its obligations to such Person are primary and any obligation of any other Persons to which such Investor Director or its Affiliates may have rights to advancement of expenses or to indemnification for an the same expenses or liabilities incurred by such Investor Nominee set forth hereinRelated Party are secondary).

Investor Director; Observer. (a) For so long as the 20.0% Beneficial Ownership Requirement is satisfied, the Investor shall be entitled to designate for nomination one (1) nominee of the Board, subject to such Person’s satisfaction of the Director Qualification Standards, the provisions of Section 2.03 and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”). (b) In the event that the Investor nominates an Investor Nominee, the Company shall (i) include the Investor Nominee in its slate of nominees for election to the Board at each annual or special meeting of the stockholders of the Company at which Directors are to be elected and at which such Investor Nominee’s seat is subject to election and (ii) recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee at any such annual or special meeting of the Company’s stockholders, subject to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee is eligible to CPAM: 10212011.2 be appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Director. For the avoidance of doubt, the Investor shall not be required to comply CPAM: 9910021.10 with the advance notice provisions generally applicable to the nomination of Directors set forth in the By-laws so long as the Investor provides reasonable advance notice to the Company of the Investor Nominee prior to the mailing of the proxy statement by the Company. (c) If an Investor Nominee then serving as a Director, if any, (the “Investor Director”) ceases to serve on the Board for any reason (other than pursuant to Section 2.02) during his or her term (until such time as the 20.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor Nominee. (d) In the absence of any nomination from the Investor at a time when it has the right to nominate a director as specified above, the Investor Director previously nominated by the Investor and then serving (if any) shall be the Investor Nominee (subject to the satisfaction of the qualification requirements for an Investor Nominee set forth herein).

Investor Director; Observer. (a) For Unless and until there has occurred a Fall-Away of Investor Board Rights, (i) for so long as the 20.025.0% Beneficial Ownership Requirement is satisfied, the FP Investor Parties shall be entitled (A) to designate for nomination one (1) nominee of to serve as the BoardInvestor Director Designee, subject to such Person’s satisfaction of the Director Qualification Standards, and (B) to designate one (1) Observer to the provisions of Section 2.03 Board and (ii) for so long as the 25.0% Beneficial Ownership Requirement is not satisfied and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person10.0% Beneficial Ownership Requirement is satisfied, the “FP Investor Nominee”)Parties shall be entitled to designate one (1) Observer to the Board. (b) In the event that the FP Investor nominates an Parties nominate any Investor NomineeDirector Designee pursuant to clause (a)(i) above, the Company shall (i) include the Investor Nominee Director Designee in its slate of nominees for election to the Board at each annual or special meeting of the stockholders of the Company at which Directors directors are to be elected and at which such the seat held by the Investor Nominee’s seat Director Designee is subject to election and (ii) recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee Director Designee at any such annual or special meeting of the Company’s stockholders and shall use its reasonable best efforts to cause such Investor Director Designee to be elected by the stockholders, subject in each case to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee Director Designee is eligible to CPAM: 10212011.2 be appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Directorsuch designation. For the avoidance of doubt, the FP Investor Parties shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in by the By-laws Company so long as the FP Investor provides Parties provide reasonable advance notice to the Company of the Investor Nominee Director Designee prior to the mailing of the proxy statement by the CompanyCompany (provided, that the Company shall provide reasonable advance notice to the FP Investor Parties of the expected mailing date). (c) In the event that the FP Investor Parties designate an Observer pursuant to Section 2.03(a) or an Observer of a Board committee pursuant to Section 2.02(c), such Observer shall (i) have the right to receive (when and as received by the Directors of the Board or members of such committee) due notice of and to attend (whether in person or by telephone) and participate in discussions at (but not vote on any matters on which the Directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, and (ii) have the right to receive copies of all documents and other information, including minutes, consents, business plans, presentation materials, budgets and financial information furnished generally to members of the Board and all committees thereof when and as received by the members of the Board or committee thereof, as applicable; provided, however, that the Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof upon the vote of a majority of the Directors or members of such committee, as applicable, if (x) such exclusion is reasonably necessary to preserve the attorney-client privilege, (y) the Company has received advice of legal counsel that if the Observer obtained such information it would result in a conflict of interest or (z) the Company has received advice of legal counsel that providing the Observer such information is prohibited under applicable Laws; provided, further, that the Observer appointed, from time to time by the FP Investor Parties shall hold all Confidential Information disclosed at any meeting of the Board or in connection with any consent of the Board, in accordance with the provisions of Section 5.02. The Company shall use its good faith efforts to provide advance written notice to the Observers of any intent to withhold information from such Observer or to exclude such Observer from attending any meeting or portion thereof in accordance with this Section 2.03(c), together with a general description of the information or materials that has been withheld to the extent that providing such description is not reasonably expected to either jeopardize the attorney-client privilege to be preserved or result in the conflict to be avoided. (d) Without the prior written consent of the FP Investor Parties, until such time as the Fall-Away of the Investor Board Rights has occurred, the Board shall not remove any Investor Director or Observer from his or her respective position (subject to Section 2.04). The FP Investor Parties shall have the sole right to remove any Investor Director or Observer at any time and to nominate, designate or appoint, as applicable, any replacement or successor thereof. (e) If an Investor Nominee then serving as a Director, if any, (the “Investor Director”) Director ceases to serve on the Board for any reason (other than pursuant to Section 2.022.04) during his or her term (until such time as the 20.025.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor NomineeDirector Designee and appoint such Investor Director to the Compensation Committee, subject to satisfaction of the applicable Committee Qualification Requirements. (df) In Until such time as the absence 25.0% Beneficial Ownership Requirement is not satisfied, upon the written request of any nomination from the FP Investor Parties, the Board shall cause the Company to call a special meeting of the holders of Series A Preferred Stock for the purpose of electing the Investor Director at a such time when it has and location as the right FP Investor Parties may reasonably request (subject to nominate a director as specified aboveapplicable Law), in addition to designation by written request of the FP Investor Parties. (g) For the avoidance of doubt, the Investor Director previously nominated by and Observer shall be entitled to travel and expense reimbursement for their reasonable and documented out-of-pocket expenses incurred in connection with travelling to and from meetings of the Board and/or any committee of the Board. In addition, (x) the Investor and then serving (if any) Director shall be entitled to enter into a customary indemnification agreement with the Investor Nominee Company on terms that are, in the event that the Company has entered into any such agreement with another non-employee Director, no less favorable than that provided to such other non-employee Director and in any event no less favorable than as in effect as of the Signing Date, and (subject y) the Company shall maintain in full force and effect directors’ and officers’ liability insurance containing terms that are reasonably satisfactory to the satisfaction FP Investor Parties. Each Investor Director shall be covered as an insured director, in such a manner as to provide each Investor Director in his or her capacity as a Director with rights and benefits under all directors’ and officers’ insurance policies no less favorable than those provided to any other non-employee Directors. The Company acknowledges and agrees that the Company is the indemnitor of first resort with respect to any Investor Related Party who is an officer, director or other fiduciary of the qualification requirements Company and its Subsidiaries (i.e., its obligations to such Person are primary and any obligation of any other Persons to which such Investor Director or its Affiliates may have rights to advancement of expenses or to indemnification for an the same expenses or liabilities incurred by such Investor Nominee set forth hereinRelated Party are secondary).