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 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 and (1) Following the date of this Agreement, the Board, in accordance with the bylaws of the Company agree that as soon as practicable (the “Bylaws”), shall take action to increase the number of directors constituting the Board by one person and shall promptly following receipt of notice from the final adjournment Buyer Representative, elect either Jxxxx Xxxxxxx or Mxxx XxXxxxxx to fill the vacancy so created to serve until the next annual meeting of stockholders of the 2013 Company or until his successor is duly elected and qualified. (2) (A) Following the date of this Agreement, any time at which the Company’s stockholders shall have the right to, or shall, vote for or consent in writing to, the election of directors of the Company (whether at an annual meeting of the Company’s stockholders, a special meeting of the Company’s stockholders (called for the purpose of electing directors of the Company or at any adjournment or postponement thereof), then, and in no event later than July 30, 2013) but subject to this Article 5each such event, the Board will increase shall (i) nominate one person to be designated by the size Buyers holding a majority in interest of the Board to nine members and appoint Preferred Stock as a designee of Purchaser for election by the Company’s stockholders 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 Board Designee”). If, following (ii) subject to the Board’s duties under Maryland law, the Board shall recommend that the Company’s stockholders vote in favor of the election of such Board Designee and (iii) enter into an indemnification agreement with such Board Designee substantially in the form filed as a Material Contract; and (B) if under the Articles Supplementary, the Buyers are entitled to nominate two additional directors for election by the Company’s stockholders to the Board, the Board, by action of the Board pursuant to the Bylaws, shall (i) create two additional vacancies on its Board and, in accordance with the Bylaws, include two persons designated by the Buyers holding a majority in interest of the Preferred Stock and, subject to the Board’s duties under Maryland law, shall recommend that the Company’s stockholders vote in favor of the election of such designees (the “Additional Board Designees”) and (ii) enter into indemnification agreements with such Additional Board Designees substantially in the form filed as a Material Contract. (3) The Board shall not withdraw any Purchaser nomination or, subject to the Board’s duties under Maryland law, recommendation required under this Section 4(m), unless the Buyers holding a majority in interest of the Preferred Stock deliver to the Board a written request for such withdrawal or the Board determines reasonably and in good faith after consultation with outside legal counsel that (i) in the case of the Board Designee, such Board Designee is prohibited or disqualified from serving as a director of the Company or is a “bad actor” as such term is defined in Rule 506(d) under the Securities Act or (ii) in the case of an Additional Board Designee, such Additional Board Designee is prohibited or disqualified from serving as an independent director of the Company or is a “bad actor” as such term is defined in Rule 506(d) under the Securities Act, in each case under any rule or regulation of the SEC, the Principal Market or by applicable Law; provided, however, that the Buyers holding a majority in interest of the Preferred Stock shall resign have the right to replace such Board Designee or be removed Additional Board Designee, as applicable, with a new Board Designee or be unable to serve Additional Board Designee, as applicable. Further, (A) for any reason prior to expiration of his term, the Purchaser shall notify the Board meeting (or consent in lieu 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 meeting) of the previous Purchaser Designee. The Company agrees that, upon expiration Company’s stockholders for the election of members of the term of the Purchaser DesigneeBoard, the Board shall re-nominate and use its best efforts to obtain not nominate, in the election aggregate, a number of nominees greater than the current number of members of the individual serving as such Purchaser Designee Board, (or another individual designated by B) subject to the Purchaser to serve as such Purchaser Designee)Board’s duties under Maryland law, 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 recommend the election of any other person to a position on the Board for which the Board Designee or Additional Board Designee, as applicable has been nominated and (C) the Company shall use commercially reasonable efforts to cause each Board Designee or Additional Board Designee, as applicable, to be required elected to make such re-nomination if the Board. If elected to the Board, the Board Designee or Additional Board Designee, as applicable, will serve as a member of the date Board for such term as is provided in the Charter and Bylaws. (4) The Buyers holding a majority in interest of the Preferred Stock shall cause any Board Designee or Additional Board Designee to resign from the Board makes its nomination decision and any committees on which such Board Designee or Additional Board Designee serves if, as determined reasonably by the Purchaser Parties no longer hold Board in good faith after consultation with outside legal counsel, (i) in the case of the Board Designee, such Board Designee is prohibited or disqualified from serving as a director of the Company or a member of any shares such committees or is a “bad actor” as such term is defined in Rule 506(d) under the Securities Act or (ii) in the case of an Additional Board Designee is prohibited or disqualified from serving as an independent director of the Company or a member of any such committees or is a “bad actor” as such term is defined in Rule 506(d) under the Securities Act, in each case under any rule or regulation of the SEC, the Principal Market or by applicable Law; provided, however, that, subject to the limitations set forth in this Section 4(m), the Buyers holding a majority in interest of the Preferred Stock shall have the right to replace such resigning Board Designee or Additional Board Designee with a new Board Designee or Additional Board Designee, as applicable, such newly-named Board Designee or Additional Board Designee to be elected promptly to the Board in place of the resigning Board Designee or Additional Board Designee, as applicable, in the manner set forth in the Charter and collectively beneficially own shares Bylaws for filling vacancies on the Board. Further, upon the resignation of Common any Board Designee or Additional Board Designee, any rights granted to such Board Designee or Additional Board Designee pursuant to this Section 4(m) shall terminate forthwith to the maximum extent permitted by applicable law and the Charter and Bylaws; provided, however, that any newly-named Board Designee or Additional Board Designee selected by the Buyers to replace the resigning Board Designee or Additional Board Designee shall be granted the rights set forth in this Section 4(m). Nothing in this paragraph (4) or elsewhere in this Agreement shall confer any third-party beneficiary or other rights upon any person designated hereunder as an Board Designee or Additional Board Designee, whether during or after such person’s service on the Board. (5) The Buyers holding a majority in interest of the Preferred Stock representing less than shall designate a person to be a Board Designee or Additional Board Designee, as applicable, (A) who Buyer Representative believes in good faith has the requisite skill and experience to serve (w) in the case of a Board Designee, as a director of a publicly-traded company and (x) 5% in the case of an Additional Board Designee, as an independent director of a publicly-traded company, (B) who is not prohibited from or disqualified from serving (x) in the total outstanding shares case 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 (a Board Designee, 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 and (y) in writing to be bound by the terms and conditions case of all an Additional Board Designee, as an independent director of the Company’s policies , and (z) in each case is not a “bad actor” as such term is defined in Rule 506(d) under the Securities Act, in each case pursuant to any rule or regulation of the SEC, the Principal Market or applicable Law and (C) with respect to its directorswhich no event required to be disclosed pursuant to Item 401(f) of Regulation S-K of the Exchange Act has occurred. Notwithstanding anything to the foregoingcontrary in this Section 4(m), 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 parties hereto agree that members of the Board and shall retain the right to object to the nomination, election or appointment of any Board Designee or Additional Board Designee for service on the Board in if the same manner as the Corporate Governance and Nominating Committee members of the Board and reasonably determine in good faith, after consultation with outside legal counsel, that such Board Designee or Additional Board Designee fails to meet the criteria set forth above. In the event that the members of the Board would consider reasonably object to the nomination, election or appointment of any candidate for Board membership. For so long as the Purchaser Designee is a member of or Additional Board Designee to the Board pursuant to the terms of this Section 5.1, in all policies of director and officer liability insurance4(m), the Purchaser Board shall nominate or appoint, as applicable, another individual designated by the Buyers as the Board Designee shall be named or Additional Board Designee, as an insured in such a manner as to provide the Purchaser Designee the same rights and benefits as are accorded applicable, nominated for election to the most favorably insured Board that meets the criteria set forth in this Section 4(m). (6) Notwithstanding anything to the contrary in this Section 4(m), nothing shall prevent the members of the Company’s officers Board from acting in accordance with their respective duties under Maryland law or applicable law or Principal Market requirements. The Board shall have no obligation to nominate, elect or appoint any Board Designee or Additional Board Designee, as applicable, if such nomination, election or appointment would violate applicable law or Principal Market requirements or result in a breach by the members of the Board of their duties to the Company and directorsits stockholders; provided, however, that the foregoing shall not affect the right of the Buyers holding a majority in interest of the Preferred Stock to designate an alternative individual as the Board Designee or Additional Board Designee, as applicable, nominated for election to the Board, subject to the other terms, conditions and provisions in this Section 4(m).

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”)in 2004 and until his successor is duly elected and qualified or his earlier resignation or removal. IfThe Company further agrees that it shall nominate Mr. Yunich, 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, sxxx xxxxx Person designated by the Purchaser shall notify and acceptable to the Board of Directors in the good faith exercise of its reasonable business judgment, to the 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 xxxxxx xx be removed from the Board of Directors prior thereto, that the Company will fill the vacancy in Class II members of its Board with another Person designated by the Purchaser and acceptable to the Board of Directors in the good faith exercise of its reasonable business judgment. Notwithstanding anything contained in this Section 5.1 to the contrary, at any time during which the Company does not maintain a replacement classified board of directors, so long as the Purchaser owns the Threshold Percentage, the Company shall comply with the provisions of this Section 5.1 to appoint the Purchaser Designee and to 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. Directors as then composed. (b) The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and to use its best efforts to obtain cause the Purchaser Designee to be nominated to the Board of Directors of the Company for election to such Board (and any committees of the Board, to the extent deemed appropriate by the non-Purchaser Designee members of the Board) by the Company's stockholders at the time and in the manner provided for such nomination and election in the Company's bylaws and certificate of incorporation. For as long as the Purchaser owns not less than the Threshold Percentage, the Purchaser Designee may not be removed or replaced without the Purchaser's prior written consent, except for any removal of such individual for Cause (but subject to the rights of the Purchaser to fill such vacancy and of the Board of Directors to except the Purchaser's designee as provided herein). (c) The Company shall also use its best efforts to cause its Board of Directors to take all necessary and appropriate action to effect the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser pursuant 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, . (d) The Company agrees that the Purchaser Designee shall be named as an insured in such a manner as entitled to provide the Purchaser Designee and shall receive the same rights and benefits compensation as are accorded other members of the Board of Directors receive for serving on the Board of Directors. (e) Anything contained in this Section 5.1 to the most favorably insured contrary notwithstanding, neither the Company nor its Board of Directors shall have any obligation under this Section to do any act or thing which violates any provision of Delaware law, the Company’s officers and directorsExchange Act, the proxy rules or any other rules or regulations promulgated under the Exchange Act or any other applicable Federal or state securities laws, rules or regulations.

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. 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) 5If the Share Consideration is more than 15% of the total Buyer Common Shares outstanding shares on the Closing Date after giving effect to all Common Shares issued on such date, then upon the written request of Common Stock Seller, the Buyer Board shall appoint to the Buyer Board one nominee of Seller to serve as a member of the Buyer Board (the “Seller Director”), as soon as reasonably practicable, provided such nominee shall be reasonably acceptable to the nominating committee of the Buyer Board (which approval shall not be unreasonably withheld or delayed). Any meeting of the shareholders of Buyer at which members of the Buyer Board are to be elected, or whenever such members of the Buyer Board are to be elected by written consent, Buyer will include in the slate of directors recommended for election by the Buyer Board to the shareholders of Buyer one member of the Buyer Board nominated by Seller, which nominee shall be reasonably acceptable to the nominating committee of the Buyer Board (which approval shall not be unreasonably withheld or delayed), and will use its reasonable best efforts to take all action necessary (including the solicitation of proxies on such Person’s behalf) to have such Person elected by the shareholders of Buyer as a member of the Buyer Board. (b) 50% Any Seller Director shall be entitled to the same rights, privileges and compensation, including reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the shares Buyer Board or any committees thereof, as the other members of Common Stock held the Buyer Board, and shall be indemnified by Buyer to the Purchaser on an as-converted basis immediately following fullest extent of the Closing Law in connection with his or her role as a director of Buyer. Buyer shall notify the Seller Director of all regular and special meetings of the Buyer Board and any committee of the Buyer Board and shall provide the Seller Director with copies of all materials provided to all other members of the Buyer Board (including in their capacities as adjusted for future stock splitsmembers of committees of the Buyer Board) concurrently as such materials are provided to the other members. (c) In the event of resignation, reverse stock splitsdeath, stock dividendsremoval or disqualification of any Seller Director, reclassificationsSeller may nominate a replacement director, reorganizations, or similar events); provided that which nominee shall be reasonably acceptable to the nominating committee of the Buyer Board (which approval shall not be required unreasonably withheld or delayed), and Buyer will use its reasonable best efforts to make take all action necessary (including the solicitation of proxies on such re-nomination if as Person’s behalf) to ensure such Person is elected by the shareholders of Buyer to the Buyer Board at the next meeting of the date the Board makes its nomination decision the Purchaser Parties shareholders of Buyer at which directors are elected. Any Seller Director may be removed at any time and from time to time, with or without cause, in Seller’s sole discretion. (d) At such time as Seller shall no longer hold any shares of Preferred Stock and collectively beneficially own shares of Buyer Common Stock Shares representing less than (x) 5at least 10% of the total outstanding shares of Buyer 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 splitsShares, 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 6.9 shall terminate and be 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 directorsno further force or effect.

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 (a) Within ninety (90) calendar days after the Company agree Closing Date, Xxxxxx agrees that as soon as practicable following the final adjournment it will appoint to its board of the 2013 annual meeting of the Company’s stockholders (and directors one individual nominated 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 writing by Triple Tree (the “Purchaser Nominating Party”) and acceptable to Parent (such individual and as such individual may be replaced as provided herein, the “Twill Designee”). IfDuring the period (the “Twill Designee Period”) from the Closing Date until the earlier of (i) the date that is 540 days after the Closing Date and (ii) the date the Trust exercises the third Consideration Warrant to be exercised, following Parent shall nominate for election and continue to recommend to its stockholders the Twill Designee be elected to serve as a director on Parent’s board of directors. During the Twill Designee Period, Xxxxxx further agrees that it will not take action to remove, or recommend the removal of, the Twill Designee without cause therefore; provided, however, that the Nominating Party’s right to nominate the Twill Designee, and Parent’s obligation to appoint the Twill Designee to the BoardParent’s board of directors, any Purchaser shall terminate upon the expiration of the Twill Designee Period. (b) As a condition to the Twill Designee’s appointment to Parent’s board of directors, the Twill Designee shall resign or tender an irrevocable resignation that will be removed or be unable to serve for any reason prior to effective upon (1) the expiration of his termthe Twill Designee Period and (2) the acceptance of such resignation by Xxxxxx’s board of directors. Parent’s board of directors will decide within 90 days of the expiration of the Twill Designee Period, through a process managed by the Purchaser shall notify nominating and governance committee of Parent’s board of directors whether to accept the Board resignation. (c) During the Twill Designee Period, upon any removal or resignation of the Twill Designee, Parent shall, within five (5) days of the receipt of written notice from the Nominating Party of the identification of a replacement Purchaser Designee and the Board shall take all necessary action to cause such replacement to be elected or appointed nominee, appoint to fill the unexpired term vacancy so created with such replacement nominee subject to the paragraph below. During the Twill Designee Period, the Twill Designee, once a director of Parent, shall be entitled to all of the previous Purchaser Designeerights enjoyed by other non-employee directors of Parent, including receipt of information, reimbursement of expenses and coverage under applicable director and officer insurance policies. The Company Further, the Nominating Party agrees thatthat it will not propose any individual as the Twill Designee to be a member of Parent’s board of directors whose background does not comply with or would disqualify Parent from complying with (i) applicable securities laws, upon expiration (ii) contractual obligations to and rules of any market or exchange on which the Parent Common Stock is listed or quoted for trading on the date in question (including, without limitation, the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, or the OTC Bulletin Board or OTCQB Marketplace operated by OTC Markets Group, Inc. (or any successors to any of the term foregoing)), and (iii) the criteria for directors set forth in the then current charter of the Purchaser DesigneeParent’s nominating committee, the Board shall re-nominate and use its best efforts will not disqualify Parent from being able to obtain the election of the individual serving as such Purchaser Designee (conduct any public offering or another individual designated by the Purchaser private placement pursuant 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 either Rule 506 (b) 50% or (c) and any “bad boy“ provisions of any state securities laws. To 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 extent 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 Xxxxx Designee who becomes a director and does not satisfy the conditions of the Companypreceding sentence, that person will immediately resign, and the Nominating Party will have the right to propose a replacement person to fill such Purchaser Designee shall agree vacancy otherwise in writing to be bound by accordance with 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 directors5.10.

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)) for election or re-election, but only if as the case may be, as a director at each subsequent meeting of the date the Board makes its nomination decision Company’s stockholders at which directors are to be elected and use commercially reasonable efforts to cause the Purchaser Parties hold shares of Preferred Stock Designee to be elected 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)elected. At such time So long as the Purchaser Designee becomes a director of is on the CompanyBoard, the Board will appoint such Purchaser Designee to the Corporate Governance Committee. At the end of the Director Period, then the Purchaser shall agree cause the Purchaser Designee to tender to the Board, as soon as practicable and in writing 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 Section 5.6(b)(ii) of the Strategic Alliance Agreement, 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 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 obligations (including related to the receipt of information and restrictions upon the use of such information) as a Purchaser Designee under this Agreement. (b) Within five (5) days following the execution of this Agreement, the Purchaser shall provide the Company with the name and relevant background information of the proposed initial Purchaser Designee. As a condition to any appointment or nomination for election to the Board, each Purchaser Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Corporate Governance Committee and those mandated by applicable Law, (ii) to the extent that the Company so requires for all of its directors, agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, xxxxxxx xxxxxxx policy and Section 16 reporting procedures and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Company’s Board of Directors and must not hold positions or interests that conflict with their responsibilities to the Company; provided that no Purchaser Designee shall be deemed to hold a position or interest that conflicts with his or her responsibilities to the Company solely by virtue of his or her position as an executive officer or a manager of the Purchaser or any of its Affiliates, and no agreement or policy applicable to the Purchaser Designee as a director will apply to Common Stock held by the Purchaser or any of its Affiliates. Notwithstanding Without limiting the foregoing, a each 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 Notwithstanding the Purchaser Designee is a member of the Board pursuant to this Section 5.1, confidentiality obligations set forth in all policies of director and officer liability insuranceclause (iii), the Purchaser Designee shall be named permitted to disclose confidential information of the Company to the executive officers of the Purchaser, members of the Board of Directors of the Purchaser and the Purchaser’s advisers on a need-to-know basis for the purposes of, and solely to the extent necessary to, monitor and make decisions regarding the Purchaser’s investment in the Company; provided, that the Purchaser will be liable for any breach of such Persons of the confidentiality obligations applicable to the Purchaser Designee. Upon the resignation or removal of the Purchaser Designee from the Board, such Purchaser Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as an insured a director in his or her possession and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession and any copies thereof (but the Purchaser Designee need not purge electronic archives and backups), and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.1(b). (c) If a manner Purchaser Designee resigns from the Board (whether pursuant to the Company’s Majority Voting Policy or otherwise), is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Purchaser shall select a replacement Purchaser Designee, reasonably acceptable to the Board and subject to Section 5.1(a), and provide the Company with the name of and relevant background information for such replacement Purchaser Designee. Subject to the terms of this Section 5.1, within fifteen (15) days following receipt of such information, the Board will appoint such replacement Purchaser Designee to the Board to replace the departing Purchaser Designee to serve the remaining term of the departing Purchaser Designee, and the replacement Purchaser Designee shall be considered a Purchaser Designee for all purposes of this Section 5.1. (d) The Purchaser Designee shall be entitled to compensation, reimbursement of out of pocket expenses, indemnification and insurance coverage in connection with his or her role as a director consistent with other directors on the Board. The Company shall notify the Purchaser Designee of all regular meetings and special meetings of the Board and of all regular and special meetings of any committee of the Board on which the Purchaser Designee serves. The Company shall provide the Purchaser Designee with copies of all notices, minutes, consents and other materials that are provided to other members of the same rights and benefits as are accorded Board to the most favorably insured of extent and in a manner consistent with the Company’s officers practices of providing such materials to the other members of the Board or such applicable committee of the Board on which the Purchaser Designee serves. (e) Each of the parties hereto expressly acknowledges and agrees that: (i) the Purchaser and its Affiliates and any of their respective Affiliates, officers, directors, employees and agents (the foregoing Persons in this clause (i), the “Exempted Persons”) have the right to, and shall have no duty (contractual, fiduciary or otherwise) not to, directly or indirectly engage in any business, business activity or line of business, including those that are the same or similar business activities or lines of business as the Company or any of its Subsidiaries, including those deemed to be competing with the Company or any of its subsidiaries; and (ii) in the event that any Exempted Person acquires knowledge of a potential transaction or matter (other than in the case of the Purchaser Designee where knowledge of such transaction or matter was acquired by the Purchaser Designee solely in his or her capacity as a member of the Board) that may be a corporate opportunity for the Company or any of its Subsidiaries, on the one hand, and such Exempted Person or any other Person, on the other hand, such Exempted Person shall have no duty (contractual, fiduciary or otherwise) to communicate or present such corporate opportunity to the Company or any of its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement to the contrary, shall not be liable to the Company or any of its Affiliates for any breach of any duty by reason of the fact that the Purchaser or its Affiliates, directly or indirectly, pursues or acquires such opportunity for itself or another Person, directs such opportunity to another Person or does not present such opportunity to the Company. (f) Notwithstanding anything contained herein to the contrary, if the Board shall establish a Board Committee to consider (i) a proposed contract, transaction or other arrangement between the Purchaser (or any of its Affiliates), on the one hand, and the Company or any of its Subsidiaries, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Subsidiaries under any agreement between the Purchaser (or any of its Affiliates), on the one hand, and the Company or any of its Subsidiaries, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Purchaser Designee, then the Purchaser Designee may be excluded from participation in such Committee (and any portion of a Board meeting at which such matters may be discussed by the full Board upon reasonable prior notice to the Purchaser Designee (to the extent practicable)), and Purchaser Designee shall not be entitled to receive copies of the written materials or other documents from such Board Committee (or any portion of the Board meeting at which such matters are discussed).

Board Designee. The Purchaser and (a) For a period of two (2) years from the consummation of the Note Transaction, the Company agree that as soon as practicable following the final adjournment of the 2013 annual meeting of the Company’s stockholders (will, at SBIL's option and in no event later than July 30if so requested by SBIL, 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 recommend and use its best efforts to obtain elect one designee of SBIL (such person to be reasonably acceptable to the election Company), at the option of SBIL, as a member of its Board of Directors; such designee, if elected or appointed, shall attend meetings of the individual serving as Board and receive no more or less compensation than is paid to other non-management directors of the Company and shall be entitled to receive reimbursement for all reasonable costs incurred in attending such Purchaser Designee (or another individual designated by the Purchaser to serve as such Purchaser Designee)meetings including, 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 not limited to, food, lodging and transportation. (b) 50% To the extent permitted by law, the Company will agree to indemnify SBIL's designee for the actions of the shares of Common Stock held by the Purchaser on an as-converted basis immediately following the Closing (such designee 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. In the event the Company maintains a liability insurance policy affording coverage for the acts of its officers and directors, it will include SBIL's designee as an insured under such policy. (c) If SBIL does not exercise its option to designate such member to the Company's Board of Directors, SBIL shall nonetheless have the right to send representatives (who need not be the same individuals from meeting to meeting) to observe each meeting of the Board of Directors, provided, however, 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 observers may be subject to satisfaction recusal from certain Board meetings as reasonably determined by the Board of Directors for appropriate agenda items. The Company agrees to give SBIL notice of each such meeting (or copies of any consents in lieu of meetings) and to provide SBIL with an agenda and minutes of the criteria for Board membership established meeting no later than it gives such notice and provides such items to the directors. In addition, SBIL's representatives (as described in this Section 5(c)) (collectively, the "REPRESENTATIVES") agree to use their reasonable efforts to keep the information provided at such meetings confidential (the "CONFIDENTIAL INFORMATION"), provided, however, the Representatives may present the Confidential Information to such parties if compelled by law or called upon to establish the Company’s Corporate Governance Guidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion availability under any Federal or state securities laws of an exemption from registration of the Corporate Governance and Nominating Committee of Offering or if the Board and contents thereof are relevant to any issue in any action, suit or proceeding to which the Board in Representatives are a party or by which they are or may be bound. Further, if the same manner as the Corporate Governance and Nominating Committee of the Board and the Board would consider Representatives are compelled to disclose 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 insuranceConfidential Information, the Purchaser Designee shall be named as an insured in such a manner as Representatives agree to provide the Purchaser Designee the same rights and benefits as are accorded notice to the most favorably insured Company of the Company’s officers and directorssuch disclosure within a reasonable time thereafter.

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 Board. In the event that the WLR Board Designee ceases to be a member of the Board, so long as such Purchaser the Designee (or Termination Date has not occurred, WLR-IV may select another individual designated by to fill the Purchaser to serve as vacancy created thereby and, if the Board determines that such Purchaser Designeeindividual meets the criteria set forth in the third sentence of this Section 2.1(a), but only if as of such individual shall become the date the WLR 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 Designee and shall be appointed to fill such vacancy. (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 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 Designees shall be subject to satisfaction the policies and requirements of the criteria for Board membership established by the Company’s Corporate Governance GuidelinesCompany and its Board, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee Guidelines of the Board and the Company’s Business Conduct Policy, and shall comply with the Company’s xxxxxxx xxxxxxx policy, in a manner consistent with the general application of such policies and requirements to other members of the Board. The Company shall indemnify the Board in Designees and provide the Board Designees with director and officer insurance to the same manner as extent it indemnifies and provides insurance for 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 other members of the Board pursuant to its organizational documents, applicable law or otherwise. The Company shall pay the Board Designees customary compensation and benefits provided to other Directors who are not employees of the Company and shall reimburse the Board Designees for their reasonable out-of-pocket expenses incurred for the purpose of attending meetings of the Board or committees thereof, in accordance with the Company’s general reimbursement policy in effect from time to time. (c) Prior to the Designee Termination Date, if no Board Designee is currently serving on the Board, WLR-IV shall have the right to designate a representative who may attend meetings of the Board and any Board committee meetings (whether such meetings are held in person, telephonically or by other means) in a non-voting, observer capacity and the Company shall provide such representative with copies of all notices, minutes, consents and other materials that it provides Directors at the same time as delivered to such Directors; provided that the Company may exclude such representative from any meeting or portions thereof and exclude such materials or portions thereof (as long as Company notifies WLR-IV that such materials have been excluded and certifies that it has determined in good faith that such exclusion is reasonably necessary to (i) preserve attorney-client privilege or (ii) protect against disclosure of information related to the Warrants or any other matter which any member of the WLR Group has an interest that is different from the interests of shareholders generally). As a condition precedent to becoming a non-voting observer, each individual designated as a representative of WLR-IV pursuant to this Section 5.12.1(c) shall execute a confidentiality agreement with the Company on customary terms. Any Board observation rights granted pursuant to this Section 2.1(c) shall terminate and be of no further force or effect upon the earlier to occur of (i) a Board Designee again serving on the Board and (ii) the Designee Termination Date. (d) All obligations of the Company pursuant to this Section 2.1 shall terminate upon the first to occur of: (i) the fifth anniversary of the date of this Agreement, in all policies (ii) the date that the WLR Group no longer has Beneficial Ownership of director and officer liability insurance, at least 5% of 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 Total Current Voting Power of the Company’s officers , (iii) any Person shall have acquired Beneficial Ownership of 50% or more of the outstanding shares of Common Stock, (iv) the Company is consolidated, merged, amalgamated, reorganized or otherwise enters into a similar transaction in which it is combined with another Person, unless the Persons who Beneficially Own the outstanding Voting Stock of the Company immediately before consummation of the transaction Beneficially Own a majority of the outstanding Voting Stock of the combined or surviving entity thereafter in substantially the same proportion among such Persons as prior to giving effect to such transaction, (v) WLR-IV irrevocably waives and directorsterminates in writing, on behalf of itself and the other members of the WLR Group, all of its and their rights under this Section 2.1, or (vi) WLR-IV, Parallel Employee Fund or any Permitted Transferee has breached the terms of this Agreement in any material respect and, with respect to breaches that are curable, such member of the WLR Group does not cure any such breach within 30 days of written notice of such breach from the Company (the date of such termination the “Designee Termination Date”). For avoidance of doubt, any breach by any member of the WLR Group of Sections 4.1, 4.5 or 4.9 shall be deemed material and not curable for purposes of the foregoing clause (vi). (e) Each of WLR-IV, Parallel Employee Fund and each Permitted Transferee shall cause any WLR Board Designee to resign, if requested by the Company, from the Board effective upon an event described in clause (iii), (iv) or (vi) of Section 2.1(d). Each of WLR-IV, Parallel Employee Fund and each Permitted Transferee agrees that the obligations imposed on them in this Section 2.1(e) are special, unique and of an extraordinary character, and that, in the event of breach by any of them or a WLR Board Designee of this Section 2.1(e), damages would not be an adequate remedy and the Company shall be entitled to specific performance and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity; and each of WLR-IV, Parallel Employee Fund and each Permitted Transferee further agrees to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief.

Board Designee. (Anything contained herein to the contrary notwithstanding the provision of this Section 5 shall not be deemed to be in addition to the rights relative to a Board Designee granted to the Purchaser in Section 5 of the September 2002 Agreement but by way of clarification thereof so as to take into account the appointment of Peter B. Yunich as a Director pursuant to the September 2002 Agrexxxxx.) (x) 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 (. The Company 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 acknowledge that Peter B. Yunich is currently serving as a Class II director, whose term shall expire at Plug Power’s 2016 director on the Xxxxx xx Xxxxxxors until the 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”). If, following election anx xxxxxxxxxe to the BoardBoard of Directors in the good faith exercise of its reasonable business judgment, any Purchaser Designee to the 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 Directors xxxxx xxereto, that the Company will fill the vacancy in Class II members of its Board with another Person designated by the Purchaser and acceptable to the Board of Directors in the good faith exercise of its reasonable business judgment. Notwithstanding anything contained in this Section 5.1 to the contrary, at any time during which the Company does not maintain a replacement classified board of directors, so long as the Purchaser owns the Threshold Percentage, the Company shall comply with the provisions of this Section 5.1 to appoint the Purchaser Designee and to 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. Directors as then composed. (b) The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and to use its best efforts to obtain cause the Purchaser Designee to be nominated to the Board of Directors of the Company for election to such Board (and any committees of the Board, to the extent deemed appropriate by the non-Purchaser Designee members of the Board) by the Company's stockholders at the time and in the manner provided for such nomination and election in the Company's Bylaws and Certificate of Incorporation. For as long as the Purchaser owns not less than the Threshold Percentage, the Purchaser Designee may not be removed or replaced without the Purchaser's prior written consent, except for any removal of such individual for Cause (but subject to the rights of the Purchaser to fill such vacancy and of the Board of Directors to accept the Purchaser Designee as provided herein). (c) The Company shall also use its best efforts to cause its Board of Directors to take all necessary and appropriate action to effect the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser pursuant 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, . (d) The Company agrees that the Purchaser Designee shall be named as an insured in such a manner as entitled to provide the Purchaser Designee and shall receive the same rights and benefits compensation as are accorded other members of the Board of Directors receive for serving on the Board of Directors. (e) Anything contained in this Section 5.1 to the most favorably insured contrary notwithstanding, neither the Company nor its Board of Directors shall have any obligation under this Section to do any act or thing which violates any provision of Delaware law, the Company’s officers and directorsExchange Act, the proxy rules or any other rules or regulations promulgated under the Exchange Act or any other applicable Federal or state securities laws, rules or regulations.

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 provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Governance Committee may reasonably request. As of the date hereof, the Purchasers with Board Rights have designated and the Company has duly appointed Xxxxxxx Xxxxxx as a member of the Board of Directors and the parties hereto agree that such individual meets the requirements set forth in the proviso to fill the unexpired first sentence of this Section 5.2(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 the first sentence of this Section 5.2(a) and the Purchasers and/or their Affiliates continue to hold at least 10% of the Company’s outstanding Common Stock , the Company shall nominate the 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. 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 Purchaser Designee (or another individual designated by nominee meets the Purchaser to serve as such Purchaser Designeecriteria set forth in the first sentence of this Section 5.2(a), but only if as of the date the such nominee shall become a 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 Designee and shall be appointed to fill such vacancy. (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 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 the policies and requirements of the criteria for Company and its Board membership established by of Directors, including the Company’s Corporate Governance GuidelinesCode of Conduct and Ethics for Employees, including Officers and Directors, in a manner consistent with the application of such policies and requirements to other members of the Board of Directors. The Company shall indemnify the Board Designee and provide the Board Designee with director qualification criteria thereofand officer insurance to the same extent it indemnifies and provides insurance for the members of the Board of Directors pursuant to its organizational documents, applicable law or otherwise. The Board Designee shall be compensated for service and reimbursed for expenses related to such service consistent with the Company’s policies for director compensation and reimbursement; provided, that a Board Designee that is a full-time employee of the Purchasers or an Affiliate of the Purchasers (other than a portfolio company) is not entitled to such compensation but is entitled to such expense reimbursement. (c) All obligations of the Company pursuant to this Section 5.2 shall terminate upon the first to occur of: (i) such time as the Purchasers or their Affiliates, collectively, do not own at least 10% of the Company’s outstanding Common Stock, (ii) the Company sells all or substantially all of its assets, (iii) the Company participates in any merger, consolidation or similar transaction following the consummation of which, the stockholders of the Company immediately prior to the consummation of such transaction hold less than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction or (iv) the Purchasers with Board Rights irrevocably waive and terminate all of their rights under this Section 5.2 in their sole discretion. The date of termination pursuant to this clause (c) of the obligations of the Company pursuant to this Section 5.2 is sometimes referred to herein as the “Designee Termination Date”. (d) The Board Designee shall, at all times during which such Person serves as a director, not be a director or executive officer of a direct competitor of the Company as determined in the reasonable and good faith discretion of the Corporate Governance and Nominating Committee of by the Board and of Directors; provided that in no event shall a Purchaser or its Affiliates (other than an Affiliate that is an operating company in which a Purchaser or an Affiliate has invested, or which a Purchaser or an Affiliate has acquired) be deemed to be a competitor. (e) Notwithstanding anything else contained in this Agreement to the contrary, if at any time prior to the Designee Termination Date, 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 not a member of the Board pursuant to this Section 5.1, in all policies of director and officer liability insuranceDirectors for any reason, the Purchaser Board Designee shall instead 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 observer at meetings of the Company’s officers Board of Directors (“Board Observer”). The Board Observer shall be provided reasonable prior written notice of, and directorsentitled to attend, all meetings of the Board of Directors and shall be furnished with all the information that members of the Board of Directors are furnished with respect to each meeting of the Board of Directors, and Section 5.2(b) shall apply to the Board Observer as if he or she were a Board Designee.

Board Designee. The Purchaser and (a) From the Company agree that as soon as practicable next business day 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 2024 annual meeting of stockholders of the Purchaser (the “Purchaser DesigneeEffective Date”) and until the first anniversary of the Effective Date (the “Nomination Period”), Dispensaries shall have the right to designate one director to the Board (the “Dispensaries Nominee”). IfThe Board shall appoint the Dispensaries Nominee, and, subject to Sections 2.01(c) and 2.01(e), take all actions necessary or appropriate to allow for the appointment of the Dispensaries Nominee and to appoint the Dispensaries Nominee so selected as promptly as reasonably practicable as a director of the Board, effective as of the Effective Date. (b) After the Nomination Period ends, if requested by the Board, Dispensaries shall cause the Dispensaries Nominee to offer his or her resignation as a director, and Dispensaries shall no longer have any rights under this Agreement with respect to the Dispensaries Nominee. (c) In addition to requirements set forth above, the Dispensaries Nominee: (x) must meet in all material respects all of the requirements of a director of the Purchaser, including, but not limited to, any requirements under the Articles of Incorporation or Bylaws and (y) must not be prohibited from or disqualified from serving as a director of the Purchaser pursuant to any Legal Requirements or rule or regulation of the SEC, the principal U.S. national securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded including the Canadian Securities Exchange. Notwithstanding anything to the contrary in this Section 2.01, the parties hereto agree that the Board shall retain the right to object to the nomination, election or appointment of any Dispensaries Nominee for service on the Board or any committee of the Board if the Board determines in good faith, after consultation with its outside legal counsel, that such Dispensaries Nominee fails to meet the criteria set forth above or that such nomination, election or appointment would be inconsistent with the Board’s fiduciary duty under Legal Requirements. In the event that the Board objects to the nomination, election or appointment of any Dispensaries Nominee to the Board pursuant to the terms of this Section 2.01, the Board shall nominate or appoint, as applicable, another individual designated by Dispensaries who meets the criteria set forth in this Section 2.01. (d) Subject to Section 2.01(e), during the Nomination Period, the Purchaser shall take all actions (to the extent such actions are permitted by Legal Requirements) to (i) include the Dispensaries Nominee in the slate of director nominees for election by the Purchaser’s stockholders at each of the Purchaser’s subsequent annual meetings of stockholders following the Effective Date and (ii) include each Dispensaries Nominee in the proxy statement prepared by the Purchaser in connection with soliciting proxies for every meeting of the stockholders of the Purchaser called with respect to the election of members of the Board at each subsequent annual or special meeting following the Effective Date, and at every adjournment or postponement thereof, and on every action or approval by written consent of the Board with respect to the election of members of the Board following the Effective Date. The Board shall recommend that the holders of Common Stock entitled to vote for directors, as applicable, vote in favor of any such Dispensaries Nominee’s election and shall support the Dispensaries Nominee in the same manner in which the Board and the Purchaser supports other director nominees, unless the Board determines in good faith, after consultation with outside counsel, that such recommendation and support would be inconsistent with the Board’s fiduciary duty under applicable Legal Requirements. Without the prior written consent of Dispensaries which shall not be unreasonably withheld, so long as Dispensaries is entitled to designate any Dispensaries Nominee for election to the Board in accordance with this Section 2.01, the Board shall not remove any Dispensaries Nominee from his or her directorship (except as required by Legal Requirements, the Articles of Incorporation, the Bylaws or otherwise provided by the terms, conditions and provisions of this Agreement). (e) The Purchaser’s obligations pursuant to Section 2.01(a) and Section 2.01(d) shall be subject to the Dispensaries Nominee providing the following: (i) any information that is required (x) to be disclosed in any filing or report, (y) in connection with determining the independence status of the Dispensaries Nominee under (A) the listing standards of the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded including the Canadian Securities Exchange or (z) under applicable Legal Requirements, including, without limitation, in connection with Legal Requirements related to the Purchaser’s or any of its Affiliates’ cannabis licenses; (ii) any information reasonably requested by the Purchaser to otherwise fulfill its obligations under Section 2.01(a) and Section 2.01(d); and (iii) if required by applicable Legal Requirements, such individual’s written consent to being named in a proxy statement as a nominee and to serving as director if elected. (f) Subject to Section 2.01(a), if a Dispensaries Nominee is not appointed, nominated or elected to the Board because of such person’s death, disability, disqualification, withdrawal as a nominee or for any other reason, (i) Dispensaries shall be entitled to designate another designee following the failure of such Dispensaries Nominee to be appointed, nominated or elected to the Board, any Purchaser Designee (ii) the director position for which the original Dispensaries Nominee was nominated, appointed or elected shall resign remain vacant until another Dispensaries Nominee designated by Dispensaries pursuant to clause (i) of this Section 2.01(f) is appointed or be removed or be unable elected to serve for any reason prior to expiration of his term, the Purchaser shall notify the Board of a replacement Purchaser Designee such position and (iii) the Board shall take all necessary action to cause such replacement to be elected or appointed to promptly fill the unexpired term of vacancy with such successor as directed by Dispensaries, it being understood that any such successor designee shall serve the previous Purchaser Designee. The Company agrees that, upon expiration remainder of the term of the Purchaser DesigneeDispensaries Nominee whom such designee replaces in accordance with the Articles of Incorporation and Bylaws. Any vacancy in the office of a Dispensaries Nominee shall be filled only by the written consent of Dispensaries. (g) Notwithstanding anything to the contrary in this Agreement, the Sellers shall cause any Dispensaries Nominee to resign from the Board shall re-nominate and use its best efforts to obtain any committees thereof if any such Dispensaries Nominee, as determined by the election of the individual Board in good faith after consultation with outside legal counsel, is prohibited or disqualified from 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 CompanyPurchaser or a member of any such committees under any Legal Requirements or rule or regulation of the SEC, the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded including the Canadian Securities Exchange or by any other applicable law; provided, however, that, subject to the limitations set forth in this Section 2.01, the Sellers shall have the right to replace such resigning Dispensaries Nominee with a new Dispensaries Nominee, such Purchaser Designee shall agree in writing newly named Dispensaries Nominee to be bound by the terms and conditions of all of the Company’s policies applicable appointed promptly 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 place of the Board resigning Dispensaries Nominee in the manner set forth in the Articles of Incorporation and Bylaws for filling vacancies on the Board would consider Board. Nothing in this Agreement shall confer any candidate for Board membership. For so long third-party beneficiary or other rights upon any person designated hereunder as a Dispensaries Nominee, whether during or after such person’s service on the Board. (h) Dispensaries shall select a Dispensaries Nominee with a view to ensuring that the Dispensaries Nominee has the skills and experience reasonably expected to serve as a director of the Purchaser Designee is a member and to contribute positively to the Board’s governance and oversight 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 directorsPurchaser.

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 Directors xxxxx xxereto, that the Company will fill the vacancy in Class II members of its Board with another Person designated by the Purchaser and acceptable to the Board of Directors in the good faith exercise of its reasonable business judgment. Notwithstanding anything contained in this Section 5.1 to the contrary, at any time during which the Company does not maintain a replacement classified board of directors, so long as the Purchaser owns the Threshold Percentage, the Company shall comply with the provisions of this Section 5.1 to appoint the Purchaser Designee and to 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. Directors as then composed. (b) The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and to use its best efforts to obtain cause the Purchaser Designee to be nominated to the Board of Directors of the Company for election to such Board (and any committees of the Board, to the extent deemed appropriate by the non-Purchaser Designee members of the Board) by the Company's stockholders at the time and in the manner provided for such nomination and election in the Company's bylaws and certificate of incorporation. For as long as the Purchaser owns not less than the Threshold Percentage, the Purchaser Designee may not be removed or replaced without the Purchaser's prior written consent, except for any removal of such individual for Cause (but subject to the rights of the Purchaser to fill such vacancy and of the Board of Directors to except the Purchaser's designee as provided herein). (c) The Company shall also use its best efforts to cause its Board of Directors to take all necessary and appropriate action to effect the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser pursuant 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, . (d) The Company agrees that the Purchaser Designee shall be named as an insured in such a manner as entitled to provide the Purchaser Designee and shall receive the same rights and benefits compensation as are accorded other members of the Board of Directors receive for serving on the Board of Directors. (e) Anything contained in this Section 5.1 to the most favorably insured contrary notwithstanding, neither the Company nor its Board of Directors shall have any obligation under this Section to do any act or thing which violates any provision of Delaware law, the Company’s officers and directorsExchange Act, the proxy rules or any other rules or regulations promulgated under the Exchange Act or any other applicable Federal or state securities laws, rules or regulations.

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 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 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. (Anything contained herein to the contrary notwithstanding the provision of this Section 5 shall not be deemed to be in addition to the rights relative to a Board Designee granted to the Purchaser in Section 5 of the September 2002 Agreement but by way of clarification thereof so as to take into account the appointment of Peter B. Yunich as a Director pursuant to the September 2002 Agreemexx.) (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 (. The Company 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 acknowledge that Peter B. Yunich is currently serving as a Class II director, whose term shall expire at Plug Power’s 2016 director on the Bxxxx xx Xxxxxxxrs until the 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 Directors prxxx xxxxxxo, that the Company will fill the vacancy in Class II members of its Board with another Person designated by the Purchaser and acceptable to the Board of Directors in the good faith exercise of its reasonable business judgment. Notwithstanding anything contained in this Section 5.1 to the contrary, at any time during which the Company does not maintain a replacement classified board of directors, so long as the Purchaser owns the Threshold Percentage, the Company shall comply with the provisions of this Section 5.1 to appoint the Purchaser Designee and to 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. Directors as then composed. (b) The Company agrees that, upon expiration of the term of the Purchaser Designee, the Board shall re-nominate and to use its best efforts to obtain cause the Purchaser Designee to be nominated to the Board of Directors of the Company for election to such Board (and any committees of the Board, to the extent deemed appropriate by the non-Purchaser Designee members of the Board) by the Company's stockholders at the time and in the manner provided for such nomination and election in the Company's Bylaws and Certificate of Incorporation. For as long as the Purchaser owns not less than the Threshold Percentage, the Purchaser Designee may not be removed or replaced without the Purchaser's prior written consent, except for any removal of such individual for Cause (but subject to the rights of the Purchaser to fill such vacancy and of the Board of Directors to accept the Purchaser Designee as provided herein). (c) The Company shall also use its best efforts to cause its Board of Directors to take all necessary and appropriate action to effect the election of the individual serving as such Purchaser Designee (or another individual designated by the Purchaser pursuant 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, . (d) The Company agrees that the Purchaser Designee shall be named as an insured in such a manner as entitled to provide the Purchaser Designee and shall receive the same rights and benefits compensation as are accorded other members of the Board of Directors receive for serving on the Board of Directors. (e) Anything contained in this Section 5.1 to the most favorably insured contrary notwithstanding, neither the Company nor its Board of Directors shall have any obligation under this Section to do any act or thing which violates any provision of Delaware law, the Company’s officers and directorsExchange Act, the proxy rules or any other rules or regulations promulgated under the Exchange Act or any other applicable Federal or state securities laws, rules or regulations.

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.