Common use of Board Designee Clause in Contracts

Board Designee. The Purchaser and the Company agree that as soon as practicable following the final adjournment of the 2013 annual meeting of the Company’s stockholders (and in no event later than July 30, 2013) but subject to this Article 5, the Board will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term of the previous Purchaser Designee. The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser Designee shall be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of the Company’s officers and directors.

Board Designee. The Purchaser and By action of the Board, the Company agree that as soon as practicable following the final adjournment of the 2013 annual meeting of the Company’s stockholders (and in no event later than July 30, 2013) but subject to this Article 5, the Board will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term -------------- shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election elect to the Board, effective as of the Closing, a person designated by the Investor (an "Investor Designee"). The Investor Designee to be elected as of the Closing shall be Xxxxxx X. Xxxxx, Xx. Until such time as (x) the Investor has disposed (directly, including through a disposition of the Warrants) of, in the aggregate, seventy-five percent (75%) or more of the Common Shares to Persons other than its Members or Affiliates, or any Purchaser Designee shall resign Person who or be removed which was a stockholder or be unable to serve for any reason subordinated creditor of Sneaker immediately prior to expiration the effectiveness of his termthe Merger ("Permitted Transferees") or (y) THL, together with its Affiliates, ceases to own a majority of the member interests in the Investor and to control, directly or indirectly, the Purchaser Investor, (a) the Company shall notify nominate and recommend to the Company's stockholders for election, and Xxxxxxxxxx shall vote or cause to be voted (or execute or cause to be executed written consents with respect to) all shares of capital stock of the Company held at the time by Xxxxxxxxxx or over which Xxxxxxxxxx possesses voting discretion in favor of the election, to the Board of an Investor Designee and (b) the Investor may require that an Inves tor Designee be removed and/or replaced by another Inves tor Designee, in which event (i) if stockholder action is necessary to effect such removal and/or replacement, the Company and Xxxxxxxxxx, respectively, shall take the actions referred to in clause (a) above in favor of such removal or replacement, as applicable, and (ii) in the case of such a replacement Purchaser Investor Designee and in connection with the death, resignation or removal of an exist ing Investor Designee, the Company, by action of its Board of Directors, shall take all necessary action to cause such replacement Investor Designee to be elected or appointed to the Board to fill the unexpired term of the previous Purchaser Designeevacancy caused by such death, resignation or removal. The Company agrees thatCom pany's obligations set forth in the last sentence of this Section 5.1 with respect to the nomination, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the recommendation or election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser particular Investor Designee shall be subject to satisfaction of any fiduciary duty principles which may be applicable to the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee members of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of the Company’s officers and directorsconnection therewith.

Board Designee. The Purchaser and In the event that the IPO has not occurred on or prior to January 31, 2022, the Company agree agrees that it will appoint to its Board of Directors the directors designated in writing by each Purchaser (such designees and as soon such designees may be replaced as practicable following provided herein, the final adjournment “Designees”) within five days of such designation, such that the Designees shall comprise a majority of the 2013 annual meeting Board of Directors. Each Purchaser, severally and not jointly with the other Purchasers, shall have the right to appoint one director to comprise the majority of the directors (if required, existing directors shall resign to allow for the Purchasers to hold a majority of the board). Further, until the IPO Date, the Company shall continue to recommend to its stockholders that it elect the Designees to serve as directors on the Company’s Board. The Company further agrees that it will not take action to remove, or recommend the removal of, the Designees without cause therefore. Upon any removal or resignation of the Designees, the Company shall, within five days of the receipt of written notice from the applicable Purchaser of the identification of a replacement designee, appoint to fill the vacancy so created with such replacement designee subject to the paragraph below. The Designee, once a Director of the Company, shall be entitled to all of the rights enjoyed by other non-employee Directors of the Company, including receipt of information, reimbursement of expenses and coverage under applicable director and officer insurance policies. Further, each Purchaser, severally and not jointly with the other Purchasers, agrees that it will not propose any individual as the Designee to be a member of the Company’s stockholders (and in no event later than July 30, 2013) but subject to this Article 5, the Board will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee Directors whose background does not comply with or would disqualify the Company from complying with (i) applicable securities laws, (ii) contractual obligations to and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term rules of the previous Purchaser Designee. The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock Trading Market and (yiii) 50% of the shares of Common Stock held by criteria for directors set forth in the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director then current charter of the Company, such Purchaser if any, and will not disqualify the Company from being able to conduct any public offering or private placement pursuant to either Rule 506 (b) or (c) and any “bad boy“ provisions of any state securities laws. Furthermore, each Purchaser, severally and not jointly with the other Purchasers, agrees that it will not propose any individual as the Designee shall agree in writing to be bound by the terms and conditions of all a member of the Company’s policies applicable to its directors. Notwithstanding the foregoing, Board of Directors who is an affiliate of a proposed Purchaser Designee shall be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured competitor of the Company’s officers . To the extent that any Designee who becomes a director and directorsdoes not satisfy the conditions of the preceding sentence, that person will immediately resign, and the applicable Purchaser will have the right to propose a replacement person to fill such vacancy otherwise in accordance with the terms of this Agreement. Any Purchaser may disclaim their right to appoint a director and this right shall terminate on the IPO Date.

Board Designee. The Purchaser For so long as the Investors collectively beneficially own one hundred percent (100%) of the Shares and five percent (5%) or more of the total issued and outstanding shares of the Company, the Investors shall have the right to designate one member of the Board of Directors of the Company agree that as soon as practicable following (the final adjournment “Investor Designee”) (and to fill the vacancy of such member in the event of the 2013 annual meeting resignation, death or removal of such member or failure of such member to be elected); provided that such Investor Designee shall qualify as an “independent director” under the listing standards of Nasdaq (or such other exchange on which the Company’s Common Stock may be listed) and shall be required to complete a questionnaire in the same form as has been executed by all other directors for the Company. The initial Investor Designee designated by the Investors shall be Mx. Xxxxx X. Rendino. Simultaneous with the Closing, the Company shall increase the size of its Board of Directors by one, fill the resulting vacancy with the initial Investor Designee in accordance with the Company’s Bylaws and appoint such Investor Designee as a Class I director. Unless otherwise agreed to by the Company’s Board of Directors, the Investor Designee shall not be appointed to or otherwise gain membership on any of the committees of the Board of Directors. Thereafter, so long as the Investor Designee is reasonably acceptable to the Company’s Nominating and Corporate Governance Committee (for the avoidance of doubt, it being understood that Mx. Xxxxx X. Rendino is reasonably acceptable to such committee), the Company shall (i) nominate and recommend in the Company’s proxy statement the Investor Designee as a Class I director of the Company’s Board of Directors at each meeting of stockholders (and in no event later than July 30, 2013) but subject to this Article 5, the Board will increase the size of the Board to nine members and appoint Company where the class of which the Investor Designee is a designee member is up for election, which for the avoidance of Purchaser to fill doubt will be the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 2018 annual meeting of stockholders of the Company, and (ii) in the “Purchaser Designee”). If, following election to event that the Board, any Purchaser Investor Designee shall resign or be removed or be unable to serve as a director for any reason prior to expiration of his termduring the period that this Section 7.10 is in effect, the Purchaser shall notify the Board of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term of the previous Purchaser vacancy resulting thereby with an Investor Designee. The Company agrees that, upon expiration shall provide all rights and benefits of indemnity to each Investor Designee as are provided to other outside directors of the term Company. In the event the Company’s Nominating and Corporate Governance Committee does not in good faith approve a particular individual as the Investor Designee for the slate of Class I directors or filling of a vacancy as a result of the Purchaser process described in this Section 7.10, then the Investors shall designate a different Investor Designee, whom shall be subject to the Board shall re-nominate same review and use its best efforts to obtain approval process and whose nomination will not be unreasonably withheld. For the election avoidance of doubt, the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided Company hereby affirms that the Board shall not be required to make initial Investor Designee identified above satisfies such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events)qualifications. At such time as that the Purchaser Designee becomes a director Investors no longer collectively beneficially own all of the Shares and five percent (5%) or more of the total issued and outstanding shares of the Company, or any Investor distributes any of such Purchaser shares to one or more of its investors, the Investors’ right to designate the Investor Designee shall agree in writing immediately terminate and the Investors shall cause the then-serving Investor Designee to be bound by the terms and conditions of all of promptly resign from the Company’s policies applicable Board of Directors. The Investors agree to its directors. Notwithstanding give prompt notice to the foregoing, a proposed Purchaser Designee shall be subject Company if they cease to satisfaction collectively beneficially own any of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of the Company’s officers and directorsShares.

Board Designee. (a) The Company hereby covenants and agrees that all times during which the Purchaser and owns not less than the Threshold Percentage, provided that the Company agree that as soon as practicable following then has a classified Board of Directors, the final adjournment Purchaser shall have the right to designate one director to the Company's Board of Directors (the 2013 annual meeting "Purchaser Designee"), which right shall not be assigned without the prior written consent of the Company’s stockholders (and in no event later than July 30. The Company agrees that on or prior to the date hereof, 2013) but subject to this Article 5, the Board it will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship current vacancy on its Board of Directors in Class II by appointing Peter B. Yunich xx x xxxxxxxx xhereto, to serve on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 of Directors until the annual meeting of stockholders (the “Purchaser Designee”). If, following election to the Board, any Purchaser Designee shall resign in 2004 and until his successor is duly elected and qualified or be removed his earlier resignation or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term of the previous Purchaser Designeeremoval. The Company further agrees thatthat it shall nominate Mr. Yunich, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another individual sxxx xxxxx Person designated by the Purchaser and acceptable to serve as such Purchaser Designee)the Board of Directors in the good faith exercise of its reasonable business judgment, but only if as to the slate of the date Company's nominees for election as Class II directors of the Company at the Company's annual meeting of stockholders in 2004 and that in the event Mr. Yunich shall xxxxxx xx be removed from the Board makes of Directors prior thereto, that the Company will fill the vacancy in Class II members of its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held Board with another Person designated by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that and acceptable to the Board shall not be required to make such re-nomination if as of Directors in the date the Board makes good faith exercise of its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directorsreasonable business judgment. Notwithstanding anything contained in this Section 5.1 to the foregoingcontrary, at any time during which the Company does not maintain a proposed Purchaser Designee shall be subject to satisfaction classified board of the criteria for Board membership established by the Company’s Corporate Governance Guidelinesdirectors, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member owns the Threshold Percentage, the Company shall comply with the provisions of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, 5.1 to appoint the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured Board of the Company’s officers and directorsDirectors as then composed.

Board Designee. The Purchaser and (a) Subject to the Company agree that as soon as practicable following terms of this Section 5.1, effective upon the final adjournment of the 2013 annual meeting of the Company’s stockholders (and in no event later than July 30, 2013) but subject to this Article 5Closing, the Board will (i) increase the size of the Board to nine members create one vacancy and appoint a designee of the Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election reasonably acceptable to the Board, any as a director to fill such vacancy, with the Purchaser Designee shall resign having such voting and other rights consistent with those generally afforded to and held by other members of the Board, for a term expiring at the Company’s 2019 annual meeting of stockholders or be removed such Purchaser Designee’s earlier resignation or be unable removal and (ii) appoint such Purchaser Designee to serve for any reason prior to expiration the Corporate Governance Committee of his term, the Board. The Company and the Purchaser agree that Xxxxx Xxxxx shall notify be the Board of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term of the previous initial Purchaser Designee. The Company agrees that, upon expiration of during the term of the Purchaser DesigneeDirector Period, the Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another any individual subsequently designated by the Purchaser to serve as such the Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock ) for election or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splitselection, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes case may be, as a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all at each subsequent meeting of the Company’s policies applicable stockholders at which directors are to its directors. Notwithstanding be elected and use commercially reasonable efforts to cause the foregoing, a proposed Purchaser Designee shall to be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membershipelected or re-elected. For so So long as the Purchaser Designee is a member on the Board, the Board will appoint such Purchaser Designee to the Corporate Governance Committee. At the end of the Director Period, then the Purchaser shall cause the Purchaser Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board, which the Board may accept or reject in its sole discretion. If the Board accepts the Purchaser Designee’s resignation, then the Company shall notify the Purchaser of the acceptance. Promptly following the date on which the Purchaser is required to provide a Competition Notice to the Company pursuant to this Section 5.1, in all policies 5.6(b)(ii) of director and officer liability insurancethe Strategic Alliance Agreement, the Purchaser Designee shall be named as an insured in such a manner as to provide cause the Purchaser Designee to tender to the Board, as soon as practicable and in any event within five (5) days following such event, his or her resignation from the Board and Purchaser shall designate a replacement Purchaser Designee, reasonably acceptable to the Board, that is “Independent” (as such term is defined in Nasdaq Listing Rule 5605(a)(2)) of Purchaser and its Affiliates; provided, that this requirement shall not apply if the Purchaser Designee then serving as a director is “Independent” (as such term is defined in Nasdaq Listing Rule 5605(a)(2)) of Purchaser and its Affiliates. For the avoidance of doubt, any replacement Purchaser Designee appointed pursuant to the preceding sentence shall have the same applicable rights and benefits as are accorded obligations (including related to the most favorably insured receipt of information and restrictions upon the Company’s officers and directorsuse of such information) as a Purchaser Designee under this Agreement.

Board Designee. (a) The Purchaser and Purchasers with Board Rights shall have the Company agree that right, subject to the conditions of this Section 5.2, to nominate one nominee to the Company’s Board of Directors (the “Board Designee”) for so long as soon as practicable following the final adjournment of the 2013 annual meeting such Purchasers and/or their Affiliates hold at least 10% of the Company’s stockholders outstanding Common Stock; provided, however, that no such appointment shall be required unless such nominee shall (i) be qualified and in no event later than July 30, 2013) but subject suitable to this Article 5, the Board will increase the size serve as a member of the Board to nine members of Directors under all applicable corporate governance policies or guidelines of the Company and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of Directors, each as interpreted and applied in good faith, and applicable legal, regulatory and stock market requirements, (ii) meet the independence requirements of Section 5605 of the Marketplace Rules of the NASDAQ Stock Market or any successor thereto with respect to the Company; provided, that the board seats, covenants and agreements contemplated by this Agreement (and payments made pursuant hereto) and ownership of any of the Shares by the Purchasers or any Affiliates of the Purchasers shall not be considered for the purpose of the application of such independence requirements, and (iii) for a replacement Board Designee that is not a full-time advisor, consultant, general partner, managing director, principal or employee of any Purchaser Designee and or an Affiliate of any Purchaser, or Chief Executive Officer or director of any portfolio company of any Purchaser or an Affiliate of any Purchaser, be acceptable to the Board shall of Directors (including the Nominating and Governance Committee of the Board of Directors) in its good faith discretion. The Purchasers with Board Rights will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, to consent to such replacement reference and background checks or other investigations and to be elected or appointed provide such information (including information necessary to fill determine the unexpired term nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the previous Purchaser Designee. The Company agrees that, upon expiration of the term of the Purchaser Designee, Company) as the Board shall re-nominate of Directors or its Nominating and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as Governance Committee may reasonably request. As of the date hereof, the Purchasers with Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser Designee shall be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board Rights have designated and the Board in the same manner Company has duly appointed Xxxxxxx Xxxxxx as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant of Directors and the parties hereto agree that such individual meets the requirements set forth in the proviso to the first sentence of this Section 5.15.2(a). On the Closing Date, Xxxxxxx Xxxxxx shall continue to serve as a duly appointed member of the Board of Directors. Provided that the Board Designee then meets the requirements set forth in all policies the first sentence of director this Section 5.2(a) and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as Purchasers and/or their Affiliates continue to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured hold at least 10% of the Company’s officers outstanding Common Stock , the Company shall nominate the Board Designee for re-election as a director at the end of each term of such Board Designee as part of the slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors. In the event that the Board Designee ceases to be a member of the Board of Directors, the Purchasers with Board Rights may select another person as a nominee for Board Designee to fill the vacancy created thereby and, if the Board of Directors determines that such nominee meets the criteria set forth in the first sentence of this Section 5.2(a), such nominee shall become a Board Designee and directorsshall be appointed to fill such vacancy.

Board Designee. (a) The Purchaser Company will cause two designees of WLR-IV to be appointed to the Board (the “Initial WLR Designees”), one of whom shall be a Class I Director and one of whom shall be a Class II Director, and will cause each such appointment to be effective on the Company agree that as soon as practicable following first Business Day after the final adjournment date hereof. To the extent required by applicable law, the Company’s articles of incorporation or by-laws, at the 2013 first annual meeting of the Company’s stockholders shareholders after the date hereof, the Company shall propose that the Company’s shareholders ratify the appointment contemplated hereby of the Initial WLR Designees. In addition, and without limiting the foregoing, from and after the date hereof through the Designee Termination Date, with respect to any meeting of the Company’s shareholders at which Class I Directors are elected generally, including the first annual meeting of the Company’s shareholders after the date hereof (or, if the Board is not classified at any such time, with respect to any meeting of the Company’s shareholders at which Directors are elected generally), the Company shall nominate an individual designated by WLR-IV to the Board (as a Class I Director if at such time the Board is classified) (the “WLR Board Designee” and collectively, with the Initial WLR Designees, the “Board Designees”); provided, however, that no nomination of a WLR Board Designee shall be required unless such nominee shall (i) be qualified and suitable to serve as a member of the Board under all applicable corporate governance policies and guidelines of the Company and the Board, and applicable legal, regulatory and Applicable Exchange requirements, (ii) not be (or be a representative of or otherwise Affiliated with) a Competitor, and (iii) be acceptable to the Board (including the Nominating and Corporate Governance Committee (the “N&CG Committee”) of the Board) in no event later than July 30, 2013) but subject to this Article 5its good faith discretion. As of the date hereof, the Board will increase the size of the has determined that Xxxxxx X. Xxxx, Xx. and Xxxxx X. Xxxxxxxx are acceptable Board to nine members and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election Designees pursuant to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee and the Board foregoing criteria. WLR-IV shall take all necessary action to cause any proposed WLR Board Designee (other than Xxxxxx X. Xxxx, Xx. and Xxxxx X. Xxxxxxxx, so long as there is no new development or change in circumstance affecting the designation of either of them that would reasonably cause the Board to review and update the Board’s determination that either of them would be an acceptable WLR Board Designee) to make himself or herself reasonably available for interviews, to consent to such replacement reference and background checks or other investigations and to be elected provide such information as the Board or appointed the N&CG Committee may reasonably request. In addition, each proposed WLR Board Designee shall provide such information necessary to fill determine whether the unexpired term proposed WLR Board Designee is independent from the Company under various requirements and institutional investor guidelines and such other information necessary to determine any disclosure obligations of the previous Purchaser DesigneeCompany as the Board or the N&CG Committee may reasonably request. The Company agrees that, upon expiration to use the same efforts to cause the WLR Board Designee to be elected to the Board (and to cause the appointment of the Initial WLR Designees to be ratified as described above) as it uses to cause other nominees of the Board to be elected and, once elected or ratified, as applicable, each Board Designee shall serve until his or her respective successor is elected and qualified or until his or her earlier death, disability or resignation or removal by the shareholders of the Company. Provided that the WLR Board Designee then meets the requirements set forth in the third sentence of this Section 2.1(a) and the Designee Termination Date has not yet occurred, the Company shall nominate such WLR Board Designee for re-election as a Director at the end of each term of such WLR Board Designee as part of the Purchaser Designee, slate proposed by the Board shall re-nominate and use its best efforts Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to obtain the election of the individual serving as such Purchaser Board. In the event that the WLR Board Designee (or another individual designated by the Purchaser ceases to serve as such Purchaser Designee), but only if as be a member of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splitsBoard, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser Designee shall be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of Termination Date has not occurred, WLR-IV may select another individual to fill the vacancy created thereby and, if the Board pursuant to determines that such individual meets the criteria set forth in the third sentence of this Section 5.12.1(a), in all policies of director such individual shall become the WLR Board Designee and officer liability insurance, the Purchaser Designee shall be named as an insured in appointed to fill such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of the Company’s officers and directorsvacancy.

Board Designee. (a) The Purchaser shall have the right to nominate pursuant to the terms and subject to the Company agree that conditions of this Section 5.3 one nominee to the Board of Directors (the “Board Designee”), to serve as a director. The initial Board Designee shall be Xxxxxxxx Xxxxxxxx, to be appointed as soon as practicable following after the final adjournment Closing Date to fill a vacancy on the Board of Directors and to be nominated for election to the Board of Directors of the 2013 Company at the annual meeting of to be held in 2013, as applicable in the event that the class to which the Board Designee is appointed stands for election in 2013 and in all events to be named as a director in the Company’s stockholders proxy statement in connection with the annual meeting to be held in 2013. Such nominee shall (i) be qualified and in no event later than July 30, 2013) but subject suitable to this Article 5, the Board will increase the size serve as a member of the Board to nine members of Directors under all applicable corporate governance policies or guidelines of the Company and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of Directors and applicable legal, regulatory and stock market requirements, (ii) have submitted to and completed to the reasonable satisfaction of the Board of Directors (including the Nominating Committee of the Board of Directors) a replacement Purchaser Designee customary background check, and (iii) be acceptable to the Board of Directors (including the Nominating Committee of the Board of Directors) in its good faith discretion. The Board of Directors and the appropriate committees of the Board of Directors shall take all necessary action conduct the consideration of the qualifications, suitability and independence of a Board Designee, and make any Table of Contents determinations with respect thereto, in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. Provided that the Board Designee then meets the requirements set forth in the second sentence of this Section 5.3(a) and the Purchaser Beneficially Owns at least 10% of the then outstanding shares of Common Stock, the Company’s Nominating Committee, subject to cause such replacement to be elected or appointed to fill applicable fiduciary obligations, shall nominate the unexpired Board Designee for re-election as a director at the end of each term of the previous Purchaser Designee. The Company agrees that, upon expiration such Board Designee as part of the term slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Purchaser Designee, the Board shall re-nominate and use its best efforts Company relating to obtain the election of the individual serving Board of Directors and will use its reasonable best efforts to cause the election of the Board Designee to the Board of Directors (including providing the same level of support as such Purchaser is provided for other nominees of the Company to the Board of Directors). In the event that the Board Designee (or another individual designated by ceases to be a member of the Board of Directors, so long as the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing Beneficially Owns at least (a) 510% of the total then outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by Stock, the Purchaser on an as-converted basis immediately following may select another person as a nominee for Board Designee to fill the Closing (as adjusted for future stock splitsvacancy created thereby, reverse stock splitsif any, stock dividendsand, reclassifications, reorganizations, or similar events); provided that if the Board of Directors determines that such nominee meets the criteria set forth in the second sentence of this Section 5.3(a), such nominee shall not be required to make such re-nomination if as of the date become the Board makes Designee and shall be appointed to fill such vacancy. The Purchaser shall exercise its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held right set forth herein by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of written notice to the Company, said notice to identify the Board Designee and provide such Purchaser information regarding the Board Designee shall agree in writing to as may be bound by necessary or advisable for the terms and conditions Board of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser Designee shall be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance Directors and Nominating Committee of the Board and of Directors to make the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of the Company’s officers and directorsdetermination set forth above.

Board Designee. The Purchaser and Within two months after the Closing Date, the Company agree agrees that as soon as practicable following it will appoint to its Board of Directors one director designated in writing by a majority in interest (based on initial Subscription Amounts, the final adjournment “Majority Purchasers”) of the 2013 annual meeting Purchasers (such designee and as such designee may be replaced as provided herein, the “Designee”). Subject to the paragraph below, for so long as the Purchasers retain beneficial ownership of at least five percent (5%) of the issued and outstanding shares of the Company’s Common Stock (the “Appointment Period”), then the Company shall continue to recommend to its stockholders (and in no event later than July 30, 2013) but subject that it elect the Designee to this Article 5serve as a director on the Company’s Board of Directors. During the Appointment Period, the Board Company further agrees that it will increase not take action to remove, or recommend the size removal of, the Designee without cause therefore. During the Appointment Period, upon any removal or resignation of the Board to nine members and Designee, the Company shall, within five business days of the receipt of written notice from the Majority Purchasers of the identification of a replacement designee, appoint a designee of Purchaser to fill the newly vacancy so created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election with such replacement designee subject to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term of the previous Purchaser Designeeparagraph below. The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes once a director Director of the Company, such Purchaser shall be entitled to all of the rights enjoyed by other non-employee Directors of the Company, including receipt of information, reimbursement of expenses, statutory indemnification and coverage under applicable director and officer insurance policies. Further, the Majority Purchasers agree that they will not propose any individual as the Designee shall agree in writing to be bound by the terms and conditions of all a member of the Company’s policies Board of Directors whose background does not comply with or would disqualify the Company from complying with (i) applicable securities laws, (ii) contractual obligations to its directors. Notwithstanding the foregoing, a proposed Purchaser Designee shall be subject to satisfaction and rules of Trading Market and (iii) the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined directors set forth in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured then current charter of the Company’s officers Nominating Committee, and directorswill not disqualify the Company from being able to conduct any public offering or private placement pursuant to either Rule 506 (b) or (c) and any “bad boy“ provisions of any state securities laws. To the extent that any Designee who becomes a director and does not satisfy the conditions of the preceding sentence, that person will immediately resign, and, during the Appointment Period, the Majority Purchasers will have the right to propose a replacement person to fill such vacancy otherwise in accordance with the terms of this Agreement.

Board Designee. The Purchaser and By action of the Board, the Company agree that as soon as practicable following the final adjournment of the 2013 annual meeting of the Company’s stockholders (and in no event later than July 30, 2013) but subject to this Article 5, the Board will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election elect to the Board, effective as of the Closing, a person designated by the Investor (an "Investor Designee"). The Investor Designee to be elected as of the Closing shall be Xxxxxx X. Xxxxx, Xx. Until such time as (x) the Investor has disposed (directly, including through a disposition of the Warrants) of, in the aggregate, seventy-five percent (75%) or more of the Common Shares to Persons other than its Members or Affiliates, or any Purchaser Designee shall resign Person who or be removed which was a stockholder or be unable to serve for any reason subordinated creditor of Sneaker immediately prior to expiration the effectiveness of his termthe Merger ("Permitted Transferees") or (y) THL, together with its Affiliates, ceases to own a majority of the member interests in the Investor and to control, directly or indirectly, the Purchaser Investor, (a) the Company shall notify nominate and recommend to the Company's stockholders for election, and Xxxxxxxxxx shall vote or cause to be voted (or execute or cause to be executed written consents with respect to) all shares of capital stock of the Company held at the time by Xxxxxxxxxx or over which Xxxxxxxxxx possesses voting discretion in favor of the election, to the Board of an Investor Designee and (b) the Investor may require that an Investor Designee be removed and/or replaced by another Investor Designee, in which event (i) if stockholder action is necessary to effect such removal and/or replacement, the Company and Xxxxxxxxxx, respectively, shall take the actions referred to in clause (a) above in favor of such removal or replacement, as applicable, and (ii) in the case of such a replacement Purchaser Investor Designee and in connection with the death, resignation or removal of an existing Investor Designee, the Company, by action of its Board of Directors, shall take all necessary action to cause such replacement Investor Designee to be elected or appointed to the Board to fill the unexpired term of the previous Purchaser Designeevacancy caused by such death, resignation or removal. The Company agrees thatCompany's obligations set forth in the last sentence of this Section 5.1 with respect to the nomination, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the recommendation or election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser particular Investor Designee shall be subject to satisfaction of any fiduciary duty principles which may be applicable to the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee members of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membershipconnection therewith. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of the Company’s officers and directors.5.2

Board Designee. The Purchaser and Effective as of the Closing Date, the Company agree that shall have appointed Xxxxx Xxx, as soon as practicable following the final adjournment a designee of the 2013 Investors affiliated with Xxxx Capital Life Sciences Investors, LLC (collectively, “Xxxx Capital Life Sciences”) to the Board of Directors of the Company. Thereafter, from the Closing Date, and for as long as Xxxx Capital Life Sciences holds a number of shares equal to the greater of (i) fifty percent (50%) of the number of shares of Common Stock (including shares of Common Stock issued or issuable upon exercise of Pre-Funded Warrants and Warrants) purchased pursuant to this Agreement on the date hereof, and (ii) 5% of the outstanding shares of Common Stock (the “Threshold Amount”), the Company will nominate and use its commercially reasonable efforts (including, soliciting proxies for Xxxx Capital Life Sciences’ designee to the same extent as it does for any of its other nominees to the Board of Directors) to have one (1) individual designated by Xxxx Capital Life Sciences elected to the Board of Directors of the Company. If at any time Xxxx Capital Life Sciences (i) shall hold less than Threshold Amount, and (ii) shall have a designee serving as a member of the Board of Directors of the Company, then, upon the request of the Company, such designee shall either resign from the Board or decline nomination for re-election at the next annual meeting of the Company’s stockholders (stockholders. Any such designated director shall be entitled to enter into the form of indemnification agreement attached hereto as Exhibit F, and in no event later than July 30shall be entitled to receive from the Company and its subsidiaries, 2013) but subject to this Article 5if applicable, the Board will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship on the Board same insurance coverage in connection with his or her service as a Class II director, whose term shall expire at Plug Power’s 2016 annual meeting of stockholders (the “Purchaser Designee”). If, following election to the Board, any Purchaser Designee shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed to fill the unexpired term of the previous Purchaser Designee. The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee), but only if as of the date the Board makes its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directors. Notwithstanding the foregoing, a proposed Purchaser Designee shall be subject to satisfaction of the criteria for Board membership established by the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member of the Board pursuant to this Section 5.1of Directors or any committee thereof as is provided for each of the other members of the Board of Directors or committee, in all policies of as applicable. Such insurance coverage shall be provided through customary director and officer liability insurance, the Purchaser Designee shall be named as an insured indemnity insurance on commercially reasonable terms . The Company agrees that it will reimburse such designated director for reasonable costs and expenses in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured of attending Board meetings in accordance with the Company’s officers and directorspolicies.

Board Designee. (a) The Company hereby covenants and agrees that all times during which the Purchaser and owns not less than the Threshold Percentage, provided that the Company agree that as soon as practicable following then has a classified Board of Directors, the final adjournment Purchaser shall have the right to designate one director to the Company's Board of Directors (the 2013 annual meeting "Purchaser Designee"), which right shall not be assigned without the prior written consent of the Company’s stockholders (and in no event later than July 30. The Company agrees that on or prior to the date hereof, 2013) but subject to this Article 5, the Board it will increase the size of the Board to nine members and appoint a designee of Purchaser to fill the newly created directorship current vacancy on its Board of Directors in Class II by appointing Peter B. Yunich as a director thereto, to serve on the Board as a Class II director, whose term shall expire at Plug Power’s 2016 of Dirxxxxxx xxxxx xxe annual meeting of stockholders (in 2004 and until his successor is duly elected and qualified or his earlier resignation or removal. The Company further agrees that it shall nominate Mr. Yunich, or such other Person designated by the “Purchaser Designee”). Ifand accxxxxxxx xx the Board of Directors in the good faith exercise of its reasonable business judgment, following election to the Board, any Purchaser Designee slate of the Company's nominees for election as Class II directors of the Company at the Company's annual meeting of stockholders in 2004 and that in the event Mr. Yunich shall resign or be removed or be unable to serve for any reason prior to expiration of his term, the Purchaser shall notify from the Board of a replacement Purchaser Designee and Directors xxxxx xxereto, that the Board shall take all necessary action to cause such replacement to be elected or appointed to Company will fill the unexpired term vacancy in Class II members of the previous Purchaser Designee. The Company agrees that, upon expiration of the term of the Purchaser Designee, the its Board shall re-nominate and use its best efforts to obtain the election of the individual serving as such Purchaser Designee (or with another individual Person designated by the Purchaser and acceptable to serve as such Purchaser Designee), but only if as of the date the Board makes of Directors in the good faith exercise of its nomination decision the Purchaser Parties hold shares of Preferred Stock or collectively beneficially own shares of Common Stock representing at least (a) 5% of the total outstanding shares of Common Stock or (b) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events); provided that the Board shall not be required to make such re-nomination if as of the date the Board makes its nomination decision the Purchaser Parties no longer hold any shares of Preferred Stock and collectively beneficially own shares of Common Stock representing less than (x) 5% of the total outstanding shares of Common Stock and (y) 50% of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (as adjusted for future stock splits, reverse stock splits, stock dividends, reclassifications, reorganizations, or similar events). At such time as the Purchaser Designee becomes a director of the Company, such Purchaser Designee shall agree in writing to be bound by the terms and conditions of all of the Company’s policies applicable to its directorsreasonable business judgment. Notwithstanding anything contained in this Section 5.1 to the foregoingcontrary, at any time during which the Company does not maintain a proposed Purchaser Designee shall be subject to satisfaction classified board of the criteria for Board membership established by the Company’s Corporate Governance Guidelinesdirectors, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. For so long as the Purchaser Designee is a member owns the Threshold Percentage, the Company shall comply with the provisions of the Board pursuant to this Section 5.1, in all policies of director and officer liability insurance, 5.1 to appoint the Purchaser Designee shall be named as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded to the most favorably insured Board of the Company’s officers and directorsDirectors as then composed.